^ 


iX^" 


*VN> 


<f: 


#" 


N<^ 


^*" 


INTERNATIONAL  LAW 

CHIEFLY     AS     INTERPRETED     AND 
APPLIED   BY  THE   UNITED   STATES 


VOLUME  ONE 


INTERNATIONAL  LAW 

CHIEFLY   AS   INTERPRETED   AND 
APPLIED  BY  THE  UNITED   STATES 


BY 

CHARLES  CHENEY  HYDE 

PROFESSOR  OF  LAW  IN  NORTHWESTEKN  UNIVERSITY 

MEMBER    OF    THE    BAR    OF    ILLINOIS,    AND 

OF   THE   DISTRICT   OF   COLUMBIA 


IN  TWO   VOLUMES 

Volume  One 


BOSTON 

LITTLE,   BROWN,   AND   COMPANY 

1922 


Copyright,  1922, 
By  Little,  Brown,  and  Company. 


All  rights  reserved 


NottoooB  ^rrss 

Set  up  and  electrotyped  by  J.  S   Gushing  Co. 

Norwood,  Mass.,  U.S.A. 


^(40 


LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


W  2  SAiN  i  A  UARBAKA 


TO 
MY    FRIEND    AND    COLLEAGUE 

JOHN  HENRY  WIGMORE 


PREFACE 

Some  years  ago  Professor  John  H.  Wigmore,  Dean  of  the  Law 
School  of  Northwestern  University,  suggested  to  the  author  the 
preparation  of  a  treatise  reflecting  what  might  be  called  the 
American  conception  of  international  law.  That  work  was  then 
begun.  Out  of  it  have  grown  the  present  volumes.  They  em- 
body the  results  of  a  study  of  international  law  chiefly  as  it 
has  been  interpreted  and  applied  by  the  United  States.  They 
express  an  attempt  primarily  to  portray  what  the  United  States, 
through  the  agencies  of  its  executive,  legislative  and  judicial 
departments,  has  deemed  to  be  the  law  of  nations. 

It  is  not  suggested  that  in  legal  contemplation  there  exists  an 
American  international  law  as  distinct  from  that  which  neces- 
sarily prevails  throughout  the  society  of  civilized  States.  It  is 
believed,  however,  that  the  views  of  the  Department  of  State 
(embracing  by  implication  those  of  the  President),  of  the  Con- 
gress, and  of  the  Courts  of  the  United  States,  together  with  those 
of  certain  other  governmental  agencies,  give  expression  to  an 
authentic  American  understanding  of  what  the  principles  of 
international  law  really  are.  Such  an  understanding  is  entitled 
to  thorough  examination  and  critical  analysis ;  for  it  constitutes 
the  only  scientific  basis  for  the  formulation  of  principles  in  reliance 
upon  which  the  United  States,  whether  at  the  Hague  or  elsewhere, 
may  participate  intelligently  and  worthily  in  the  common  effort 
to  render  the  law  of  nations  closely  responsive  to  the  just  and 
changing  demands  of  civilization.  Clearness  of  thought  concern- 
ing rules  which  any  State  may  soundly  press  for  adoption  in  a 
codification  designed  for  general  approval  imposes,  as  a  condi- 
tion precedent,  an  exact  enunciation  of  what  are  conceived  to 
be  the.  existing  requirements  of  international  law. 

The  scope  of  the  present  work  necessarily  calls  for  the  treat- 
ment of  numerous  matters  which,  however  closely  associated  with 
the  international  obligations  of  the  United  States,  refer  primarily 
to  the  domestic  activities  of  an  independent  State  in  pursuance 
of   its   fundamental  law.     Thus,   in  relation  to  topics  bearing, 

vii 


PREFACE 

for  example,  upon  the  making  of  treaties,  extradition,  nation- 
ality, passports,  neutrality  laws  and  a  variety  of  other  sub- 
jects, it  will  be  seen  that  the  chief  problem  for  consideration  is 
how  the  United  States,  in  the  light  of  its  existing  institutions, 
undertakes  to  fulfill  its  obligations  to  the  outside  world,  rather 
than  how  the  principles  of  international  law,  as  tested  by  the  prac- 
tice of  States,  ordain  that  it  shall  act.  Again,  other  matters  are 
discussed  which  concern  primarily  the  conduct  of  foreign  States, 
and  relate  but  indirectly  to  the  United  States.  This  will  be 
observed  in  the  treatment  of  certain  problems  either  resulting 
from  The  World  War,  or  for  which  recent  treaties  of  peace  have 
made  provision. 

The  pages  which  follow  do  not  purport  to  be  descriptive  of 
American  diplomacy.  Nor  do  they  point  to  paths  of  national 
policy  save  with  respect  to  those  necessarily  leading  through 
the  domain  of  legal  principle,  and  obscured  by  confusion  of  thought 
and  insufficient  markings.  No  attempt  has  been  made  to  con- 
struct a  digest  of  American  State  papers  or  judicial  decisions. 
There  has  been  no  reluctance  in  adverting  to  the  nature  of  uncon- 
vincing reasoning  or  of  strained  applications  of  principle  when- 
ever they  seem  to  have  been  apparent,  and  regardless  of  their 
origin.  Moreover,  there  has  been  constant  endeavor  to  empha- 
size the  unreasonableness  of  any  rule  which,  however  widely 
accepted,  and  although  acquiesced  in  by  American  statesmen, 
has  appeared  through  its  operation  to  violate  the  requirements 
of  international  justice.  Under  such  circumstances  the  author 
has  not  hesitated  to  suggest  the  nature  of  the  modification  which 
those  requirements  seemed  to  demand.  He  has  not  refrained  from 
the  attempt  to  point  out,  in  the  light  of  reason  and  practice,  the 
next  step  which  his  own  country  might  well  advocate. 

There  is  abundant  documentary  evidence  of  international  law 
as  interpreted  and  applied  by  the  United  States.  American 
diplomatic  correspondence,  the  decisions  of  the  Supreme  Court 
of  the  United  States  and  of  lesser  American  tribunals,  Federal 
and  State,  Acts  of  Congress,  together  with  publications  of  the 
War  and  Navy  Departments  and  other  agencies  of  the  Govern- 
ment, bear  impressive  testimony.  The  treaties  to  which  the 
United  States  is  a  party  reflect  also  principles  in  which  it  has 
acquiesced.  On  such  material  the  present  volumes  are  chiefly 
based.  Reliance  has,  however,  oftentimes  been  placed  upon 
other  data,  and  upon  much  of  foreign  origin.  Emphasis  has  at 
times  been  attached  to  the  views  of  commentators  on  American 

viii 


PREFACE 

practice.  The  utterances  of  Professor  John  Bassett  Moore  have 
been  quoted  with  frequency  because  of  their  unique  and  authori- 
tative value.  The  Digest  of  International  Law,  prepared  and 
enriched  by  him  in  1906,  has  been  constantly  relied  upon ;  and 
for  the  convenience  of  the  reader  reference  is  made  thereto  with 
respect  to  documents  there  quoted,  regardless  of  their  publication 
elsewhere.  The  publications  of  the  Naval  War  College  and  the 
documents  supplementary  to  the  American  Journal  of  Interna- 
tional Law,  as  well  as  the  contents  of  that  periodical,  have  been 
put  to  full  use,  and  also  certain  publications  of  the  Carnegie 
Endowment  for  International  Peace.  A  few  sections  of  this 
work  comprise  an  enlargement  and  revision  of  papers  by  the 
author  originally  printed  in  the  American  Journal  of  International 
Law. 

One  purpose  of  these  prefatory  words  is  to  express  the  grati- 
tude of  the  author  to  those  who  have  furthered  his  efforts.  Their 
number  has  been  legion  and  their  assistance  beyond  appraisal. 
A  course  under  Professor  Joseph  H.  Beale  in  the  Harvard  Law 
School  in  1898,  in  public  and  private  international  law,  was  a 
source  of  aid  which  has  not  ceased  to  be  of  value.  To  the  Library 
of  Congress  and  its  Librarian,  Dr.  Herbert  Putnam,  the  author 
has  long  been  indebted  for  unusual  courtesies  and  assistance. 
He  acknowledges  his  special  indebtedness  to  the  Chief  Assistant 
Librarian,  Mr.  Appleton  P.  C.  Griffin,  whose  zeal  and  interest 
in  procuring  documents  not  easily  accessible  have  been  warmly 
appreciated.  Various  divisions  of  the  Department  of  State  have 
from  time  to  time  rendered  aid.  Courtesies  on  the  part  of  its 
Bureau  of  Rolls  and  Library  have  been  constant.  Mr.  Richard 
W.  Flournoy,  Jr.,  of  the  same  Department  has  been  good  enough 
to  make  a  careful  examination  of  the  sections  relating  to 
nationality  and  passports,  and  to  offer  important  suggestions 
which  it  has  been  deemed  a  privilege  to  incorporate  in  the  text. 
The  Library  of  the  Carnegie  Endowment  for  International  Peace 
at  Washington  has  furnished  much-needed  assistance. 

In  certain  instances  the  author  has  acknowledged  his  indebted- 
ness to  the  kindness  of  others  in  foot-notes  pertaining  to  material 
which  they  have  furnished.  He  mentions  also  the  following  as 
among  those  to  whom  his  thanks  are  especially  due : 

Professor  Edwin  M.  Borchard,  of  Yale  University ;  Hon. 
Wilbur  J.  Carr,  Director  of  the  Consular  Service  of  the  Depart- 
ment of  State;  Frederic  B.  Crossley,  Esq.,  Secretary  of  North- 
western University  Law  School;   Major  General  (then  Brigadier 

ix 


PREFACE 

General)  Enoch  M.  Crowder,  U.  S.  A. ;  Dr.  Frances  Gardiner 
Davenport,  of  the  Carnegie  Institution  of  Washington ;  Dr. 
William  C.  Dennis,  of  Washington,  D.  C. ;  George  A.  Finch,  Esq., 
of  the  American  Journal  of  International  Law ;  Dr.  Stanley  K. 
Hornbeck,  of  Washington,  D.  C;  Professor  Albert  Kocourek,  of 
Northwestern  University  Law  School ;  Dr.  Henry  Barrett  Learned, 
of  Washington,  D.  C. ;  Dr.  C.  E.  McGuire,  of  the  Inter-Ameri- 
can High  Commission ;  Professor  John  Bassett  Moore,  of  Colum- 
bia University ;  Dr.  Leo  S.  Rowe,  Director-General  of  the 
Pan-American  LTnion ;  Dr.  James  Brown  Scott,  Secretary  of  the 
Carnegie  Endowment  for  International  Peace  ;  Professor  Munroe 
Smith,  of  Columbia  University ;  Rear  Admiral  Charles  H.  Stock- 
ton, U.  S.  N.,  retired ;  Commander  Raymond  Stone,  V.  S.  N., 
retired;  Dr.  Charles  C.  Tansill,  of  Washington,  D.  C;  William 
R.  Vallance,  Esq.,  Assistant  Solicitor  of  the  Department  of 
State;  Professor  Eugene  Wambaugh,  of  Harvard  University; 
Louis  B.  Wehle,  Esq.,  formerly  General  Counsel  of  the  War 
Finance  Corporation ;  Professor  George  Grafton  Wilson,  of 
Harvard  University ;  Lester  H.  Woolsey,  Esq.,  formerly  Solicitor 
of  the  Department  of  State.  It  is  a  pleasure  to  record  the  fact 
that  numerous  and  highly  valued  suggestions  of  Mr.  Lewis  H. 
Bailey  of  Messrs.  Little,  Brown  &  Company,  the  publishers, 
have  been  gratefully  accepted. 

For  encouragement  from  Professor  John  H.  Wigmore,  the  dedi- 
cation of  this  work  betokens  the  gratitude  of  the  author.  For  that 
vigorously  given  by  his  law  partners.  Captain  Ira  Edward  West- 
brook,  U.  S.  R.,  and  Professor  Charles  H.  Watson,  of  Northwestern 
University  Law  School,  he  makes  full  acknowledgment. 

C.  C.  H. 

Washingtgn,  D.C. 
March,  1921. 


CONTENTS 


Volume  One 


PAGES 

Preface vii 

Table  of  Cases xxix 

List  of  Abbreviations  ........  xlvii 

PRELIMINARY 

§§  1-5   CERTAIN   ASPECTS   OF   INTERNATIONAL  LAW  .  1-13 

PART   I 
STATES.     THEIR  CLASSIFICATION 

TITLE   A 

SUBJECTS   OF   INTERNATIONAL   LAW 

1.  States 

a.  §  6.    Significance  of  the  Term  in  International  Law       .         .  15 

b.  §  7.    Requisites  of  a  State  of  International  Law    ...  16 

c.  §§  8-10.    Excluded  Associations  or  Entities  ....  17-19 

2.  The  Equality  of  Independent  States 

§  11.    Observance  of  the  Principle 20 

TITLE   B 
CLASSIFICATION    OF   STATES   OF   INTERNATIONAL  LAW 


States  in  Relation  to  Their  Freedom  from  External  Control 
o.    §  12.    In  General 

b.  §  13.    Independent  States      ...... 

c.  Dependent  States 

(1)  §  14.    Preliminary   ....... 

(2)  §§  15-16.   Certain    So-called    Protectorates    and    Pro 

tected  States        ....... 

(3)  §§  17-18.    So-called  Suzerainties     .... 

(4)  §§19-24.    Relationships  Established  between  the  United 

States  and  Certain  Neighboring  States 

(5)  §  25.    Protection  of  Countries  Lacking  European  Civili- 

zation ......... 

(6)  §  26.    Mandatory  States  under  the  League  of  Nations 

(7)  §  27.    Certain    Minor    Impairments    of     Independence 

through  the  Medium  of  the  League  of  Nations   .         .  40 

xi 


23 
23 

24 

25-26 
26-27 

27-35 

36 
38 


CONTENTS 


(8)    §  28.    Turkey 

d.    §  29.    Neutralized  States        ....... 

States  in  Relation  to  Their  Structure  and  Composition 

a.  §  30.    In  General 

b.  Unions  of  States 

(1)  §  31.    Where  International  Personality  of  Members  Is 

Not  Relinquished         ....... 

(2)  §  32.    Where  International  Personality  of  Members  Is 

Relinquished         ........ 

(3)  §  33.    Countries  Not  Possessed  of  European  Civilization 

(4)  §  34.    The  International  Organization  of  States 


PAGES 

41 
42 


45 


48 
49 
51 


PART   II 
NORMAL   RIGHTS   AND   DUTIES   OF  STATES 


/. 


TITLE   A 
RIGHTS   OF   POLITICAL   INDEPENDENCE 

1.  §  35.    The  Right  to  Become  a  State  of  International  Law 

2.  Recognition 

a.  §  36.    In  General 

b.  §  37.    Mode  of  Recognition    ...... 

c.  §  38.    Conditional  Recognition       ..... 
§§  39-40.    Time  of  According  Recognition  to  a  New  State 

Produced  by  Revolution     ...... 

§  41.    Recognition,  by  Whom  Determinable 
§  42.    Acts  Falling  Short  of  Recognition  of  a  New  State 
§§  43-45.    Recognition  of  New  Governments 
§  48.    Acts  Falling  Short  of  Recognition  of  New  Govern- 
ments ......... 

§§  47-49.    Recognition  of  Belligerency  .... 

§  50.   Acts   Falling  Short  of   Recognition  of   Belligerency 
Insurgency  

3.  §  51.    The  Right  to  Continue  Existence      .... 

4.  Rights  of  Independence  during  Existence 

a.  §  52.    In  General 

b.  §§  53-55.    In  Domestic  Affairs 

c.  Foreign  Affairs 

(1)  §  56.   In  General 

(2)  §  57.   The  Conclusion  of  Special  Relationships 

(3)  §  58.   The  Right  to  Acquire  Territory     . 

(4)  §§  59-64.   The  Admission  and  Expulsion  of  Aliens  . 

5.  Certain  Non-Political  Acts  of  Self-defense 

a.  §  65.    In  General 

b.  §§  66-67.    Invasion  of  Territory 

c.  §  68.   Acts  on  the  High  Seas.   The  Case  of  The  Virginius 

xii 


55 

56 
57 

58 

59 

63 

64 

66-73 

75 
77-79 

81 
83 

84 
86-87 

90 
91 

94 
94-105 

106 

107-110 

114 


CONTENTS 


6.  Intervention 

a.  §  69.    In  General    .... 

b.  §  70.    Self-defense  .... 

c.  §71.   Prevention  of  Unlawful  Intervention  by  Another  State 

d.  §§  72-73.     Domestic  Affairs 

e.  §  74.     Intervention  by  a  Body  of  States 
/.    §  75.     Chronic  Disregard  of  International  Obligations 
(J.    §§  76-83.     The  Conduct  of  the  Ignited  States 
h.    §  84.    The  League  of  Nations  and  Intervention 

7.  The  Monroe  Doctrine 
a.    §  8o.    Preliminary  .... 

0.  §  86.    Prior  Events 

c.  §  87.    President  Monroe's  Message 

d.  §  88.    The  Non-colonization  Principle 

e.  §  89.    The  Non-intervention  Principle 
/.    §§  90-92.    Scope   of  Opposition  to  Foreign  Territorial  Ag 

grandizement      ........ 

g.    §  93.    Opposition  to  Interference  with  Political  Independence 
h.    §§  94-9.5.    Modes  of  Applying  the  Monroe  Doctrine 

1.  §  96.    The  Relation  of  the  Monroe  Doctrine  to  International 

Law    .......... 

j.    §  97.    The  Relation  of  the  Monroe  Doctrine  to  the  League 
of  Nations 


PAGES 

116 
119 
119 

120-121 
122 
123 

124-130 
132 

133 
134 
136 
139 
140 

140-147 

151 

1.52-1.55 

156 

159 


TITLE   B 
GENERAL  RIGHTS  OF  PROPERTY   AND  CONTROL 

Creation,  Transfer,  Extinction 
a.   Creation 

(1)  §  98.    In  General 162 

(2)  §  99.    Discovery 163 

(3)  §§  100-104.   Occupation 167-173 

(4)  §  105.    Accretion 174 

(5)  §  106.    Conquest 175 

h.   Succession 

(1)  §§  107-114.    Cession 177-189 

(2)  §  115.    Relinquishment 191 

Prescription          .......  192 

Revolution 196 


(3)  §  116. 

(4)  §  117. 
Extinction 

(1)  §  118. 

(2)  §  119. 


Operation  of  Nature    . 
Abandonment      .... 
Certain  Effects  of  Change  of  Sovereignty 

a.  §  120.    In  General 

b.  §121.    Effect  on  Legislative  and  Political  Power 

c.  §  122.    Effect  on  Law 

d.  §§  12.3-130.    Effect  on  Public  Debts      . 

e.  §  131.    Effect  on  Contracts  and  Concessions 
j.    §§132-133.    Effect  on  Private  Rights    . 

xiii 


196 
197 

199 
200 
201 

204-224 
227 

235-238 


CONTENTS 


3.    Nature  and  Limits  of  Rights  pages 

a.  Extent  of  the  National  Domain 

(1)  §  134.    In  General 241 

(2)  Various  Territorial  Limits 

(a)    §  135.    Artificial  Lines 242 

lb)    §  136.   Mountains  and  Hills 242 

(c)  §§  137-140.    Rivers 243-250 

(d)  §§  141-145.    Marginal  Seas 251-257 

(e)  §§  146-148.    Bays 258-267 

(/)    §  149.    Lakes  and  Enclosed  Seas      ....  267 

(g)    §  150.    Straits 269 

(3)  §  151.    Determination  of  Boundaries       ....  270 

b.  Certain  Limitations  of  the  Right  of  Control  over  What  Per- 

tains to  the  Territory  of  a  State 

(1)  §§152-153.    In  General.     Servitudes     ....  272-275 

(2)  §  154.    Marginal  Seas 277 

(3)  §§  155-158.    Straits 278-281 

(4)  Navigation  of  Rivers 

(a)  §  159.    National  Streams 282 

(b)  §§160-165.    International  Streams  of  North  Amer- 

ica          283-290 

(c)  §§  166-167.    International  Streams  of  South  Amer- 

ica          291-292 

(d)  §§  168-180.    International  Streams  of  Europe          .  293-308 

(e)  §  181.    International  Streams  of  Africa    .         .         .  309 
if)    §  182.    Certain  General  Conclusions         .         .         .  311 

(5)  §§  183-184.    Diversion  of  Waters 313-316 

(6)  §  185.    Bays 319 

(7)  §  186.    Lakes  and  Enclosed  Seas 320 

(8)  §  187.    Access  to  Ports 321 

(9)  §§  188-193.    Air  Space  over  the  National  Domain          .  324-332 

(10)  §§  194-196.    Transit  by  Land 334-336 

(11)  §§  197-198.    The  Protection  of  Areas  by  Neutralization 

iind  Other  Processes.     International  Waterways      .  338-341 

c.  The  Supremacy  of  the  Territorial  Sovereign  over  the  National 

Domain 

(1)  §  199.    In  General 34G 

(2)  §§  200-202.    Acts  in  Derogation  of  the  Supremacy  of  the 

Territorial  Sovereign           ......  347-349 

(3)  §§  203-217.    The  Exercise  by  a  State  of  Certain  Rights 

as  Sovereign  within  Its  Own  Domain       .         .         .  352-384 


TITLE   C 
RIGHTS  AND  DUTIES  OF  JURISDICTION 

Rights  of  Jurisdiction 

a.  §  218.    In  General 

b.  §  219.    The  Establishment  of  a  Judicial  System 

c.  The  Exercise  of  Jurisdiction  within  the  National  Domain 

xiv 


386 

388 


CONTENTS 


(1)  §220.   On  Land      .... 

(2)  §§  221-225.   Ports  and  Bays.   Foreign  Merchant  Vessels 

(3)  §  226.   The  Marginal  Sea.   Foreign  Merchant  Vessels 
The  High  Seas 

(1)  §  227.    In  General 

(2)  §  228.   Jurisdiction  Resulting  from  Acts  of  Self-Defense 

(3)  §§  229-230.   Vi.sit  and  Search 

(4)  §§  231-234.    Piracy 

(5)  §  235.    Revenue^  or  Hovering  Laws 

(6)  §  236.    Hot  Pursuit 

(7)  §  237.    Impressment 
§§  238-243.    E.xtra  territorial  Crime       . 
Exemptions  from  Territorial  Jurisdiction 
(1)    §§  244-245.    In  General 

§  246.    Heads  of  Foreign  States 

§§  247-249.    Foreign  Military  Forces 


(2) 
(3) 
(4) 
(5) 
(6) 
(7) 


§§  250-255.    Foreign  Vessels  of  War 

§§  256-257.    Other  Vessels  in  Foreign  Public  Service 

§  258.    Other  Foreign  Public  Property   . 

§§  259-265.    Extraterritorial  Jurisdiction 


2.  Duties  of  Jurisdiction 

a.  §§  266-267.    Maintenance  of  a  Judicial  Sj'stem. 

national  Standard  .... 

b.  §§  268-269.   Operation  of  the  Judicial  System 

3.  Claims 

a.    §270. 


An  Inter- 


h. 
c. 
d. 

e. 
f. 


In  General  ........ 

§§  271-272.    Mode  of  Presentation  of  Private  Claims  . 

§§  273-274.    The  Prosecution  of  Private  Claims  . 

§§  275-280.    Conditions  of  Interposition  in  Behalf  of  a  Pri- 
vate Claimant  ......... 

§§  281-285.    Grounds  of  Interposition 

§§  286-288.    Claims  Arising  from  Acts  Primarily  Attribu- 
table to  the  Authorities  of  a  State    .  .         .         .         . 

§§  289-293.    Claims  Arising  from  Tortious  Acts  Not  Prima- 
rily Attributable  to  the  State    ...... 

§§  294-299.    Claims  Based  on  War 

§§  300-302.   The  Relation  of  a  State  to  Acts  of  Insurgents     . 

§§  303-309.    Contractual  Claims  against  Foreign    Govern- 
ments       .......... 


Extradition 

a.  §  310.    Preliminary        .... 

b.  §§  311-312.   Extradition  without  Treaty 

c.  Treaties  of  the  United  States 

(1)  §  313.    Policy  .... 

(2)  §  314.    Offenses  Generally       . 

(3)  §§  315-318.    Political  Offenses 

(4)  §§  319-320.    Nationals    . 

(5)  §  321.    Irregular  Recovery  of  Fugitive 

XV 


PAGES 

392 

393-401 

404 

405 

406 

407-408 

410-417 

417 

420 

421 

422-426 

428-429 
430 
432-434 
435-441 
442-445 
446 
448-462 


464-466 
470-472 

472 

475-476 

477 

479-490 
491-500 

501-510 

511-522 
524-536 
538-544 

544-563 

566 
568-569 

569 

571 
571-577 
378-579 

580 


CONTENTS 


(6) 

(7) 

(8) 

(9) 

(10) 

(11) 


§§  322-323.    Limitations  as  to  Trial 
§  324.    Requisition.     Mandate     . 
§  32.5.    Provisional  Detention 


§§  326-327.    Interpretation 

§  328.    Scope  of  Treaties  with  Respect  to  Areas  Covered 

§  329.    Fugitives  from  Justice 

Some  Aspects  of  Procedure  in  the  United  States 

(1)  §  330.    In  General 

(2)  §  331.    Magistrates 

(3)  §§  332-334.    Complaint 

(4)  §§  335-338.    Evidence  . 

(5)  §§  339-341.    Surrender 


PAGES 

582-585 
586 
587 

588-590 
591 
593 

593 

594 

596-598 

599^603 

605-608 


TITLE   D 
NATIONALITY 


1.  §  342.   In  General 

2.  The  Acquisition  of  American  Nationality  by  Birth 

a.  Citizenship 

(1)  §§343-344.    By  Right  of  Place.    Jure  Soli   . 

(2)  §  345.    By  Right  of  Blood.    Jure  Sanguinis 

b.  American  Nationality  as  Not  Derived  from  Citizenship 

(1)  §  346.    By  Right  of  Place.    Jure  Soli    . 

(2)  §  347.    By  Right  of  Blood.    Jure  Sanguinis 

c.  §  348.   The  Attitude  of  International  Tribunals 

3.  §  349.   Acquisition  of  Nationality  by  Revolution 

4.  Naturalization 
a.    §  350.    Definition.    Regulation     .... 
h.    §  351.    Voluntary  Individual  Action    . 

c.  §  352.    Collective  Naturalization 

d.  §§  353-360.    American  Naturalization 

e.  §§  361-364.    Conventional    Arrangements    of    the  United 

States      ........ 

/.    §§  365-366.    Nationality  of  Married  Women 

g.    §  367.    Effect  of  Parents'  Naturalization  on  Infants 

h.    §§  368-369.    Naturalization     Partially     Ineffective    as    to 

Absent  Family         ...... 

i.    §§  370-371.   Impeachment  of  Naturalization 

5.  Double  Allegiance 

a.  §  372.    Its  Significance 

b.  §§  373-375.   The  Attitude  of  the  United  States 

6.  §§  376-387.    The  Right  of  Expatriation   . 

7.  §§  388-393.   Loss  of  Right  to  National  Protection  . 

8.  §  394.   Seamen 

9.  §  395.    Care  of  Indigent  Nationals    .... 

xvi 


610 


612 
615 

617 
619 
620 

621 


622 

623 

624 

626-634 

636-642 

643-645 

646 

648 
649-651 

653 
654-658 

659-676 

677-683 

684 

685 


CONTENTS 

10.  The  Temporary  Protection  of  Domiciled  Aliens  Declaring  an  pages 

Intention  to  Become  American  Citizens 

a.    §  396.    Thrasher's  Case.    Koszta's  Case       ....  686 

h.    §  397.   The  Act  of  March  2,  1907 688 

11.  §  398.   Extraterritorial  Factories  of  American  Citizens    .        .  689 

TITLE   E 
AMERICAN   PASSPORTS 

1.  §  399.   In  General 692 

2.  §  400.   To  Whom  Issued   ........  695 

3.  §  401.    Grounds  of  Refusal 696 

4.  §§  402-403.    International  Effect 697-698 

5.  §  404.    Local  Papers           .         .         .         .  '       .         .         .         .  699 

6.  §§  405-406.   War  Regulations 700-702 

PART   III 
DIPLOMATIC   INTERCOURSE  OF  STATES 

TITLE   A 
§  407.   In  General 707 

TITLE   B 
AGENTS  OF  A  STATE 

1.  §  408.   The  President  of  the  United  States       ....  708 

2.  §  409.    Communications  through  Non-governmental  Channels  710 

3.  §  410.   The  Secretary  of  State  as  Organ  of  Correspondence     .  713 

4.  §§  411-417.   Diplomatic  Missions 714-723 

TITLE   C 
BEGINNING  AND  END  OF  MISSION 

1.  §  418.   Appointments 725 

2.  §  419.   Reciprocity  of  Treatment      .../..  726 

3.  §§  420-421.    Credentials  and  Reception 727-728 

4.  §§  422-425.    Question  of  Personal  Acceptability        .         .         .  732-737 

TITLE   D 
THE   RIGHTS   AND   DUTIES  OF   MINISTERS 

1.  §§  426-427.   Right  to  Protection 739-740 

2.  §§  428-429.   Right  of  Official  Communication           .        .         .  741-743 

3.  §§430-432.   Miscellaneous  Privileges 743-745 

4.  §§  43.3-442.    Jurisdictional  Immunities 746-759 

xvii 


CONTENTS 


5.  §  443.   Diplomatic  Asylum        .... 

6.  §§  444-453.   The  Functions  of  a  Minister 

TITLE   E 
OFFICIAL  NEGOTIATIONS 

1.  §  454.   The  Diplomatic  Channel 

2.  §  455.    Language.    Tone 

3.  §  456.   Publication 


TITLE   F 
CEREMONIAL 

1.  §  457.   Observance  of  Formalities 

2.  §  458.    Rules  of  Precedence 

3.  §  459.   Ambassadorial  Privileges 


7»>0 
763-774 


776 

777 
778 


780 

781 
782 


§  460.   Classes  and  Titles 


PART   IV 
CONSULS 

TITLE   A 

.        .        .  785 

TITLE   B 
§  461.   Appointment  of  American  Consular  OflScers       .        .        .  788 

TITLE   C 
EXEQUATUR 

1.  §  462.   Nature  and  Effect.     Conditions  of  Issuance  .        .        .  790 

2.  §  463.   Refusal  or  Revocation 792 

TITLE   D 
PRIVILEGES  AND   IMMUNITIES 

1.  §  464.    Under  International  Law  and  Treaty     ....  794 

2.  §  465.   Respect  for  the  Consular  Function          ....  795 

3.  §  466.    Protection  of  the  Person  of  a  Consul      ....  797 

4.  §  467.    Protection  of  the  Consular  Archives  and  Dwelling       .  797 

5.  §§  468-469.    Correspondence 799-801 

6.  §§  470-473.    Certain  Accessory  Privileges          ....  803-804 

7.  §§  474r-476.  Amenability  to  Local  Process  ....  806-808 
S.  §§  477-482.  Privileges  in  Relation  to  Deceased  Countrymen  .  809-820 
9.    §§  483-485.   Shipping  and  Seamen 820-824 

10.  §§  486-487.    Notarial  Functions 825-826 

11.  §  488.    Miscellaneous  Duties 828 

xviii 


CONTENTS 
Volume  Two 


PART   V 
AGREEMENTS  BETWEEN  STATES 

TITLE   A 

§  489.   Preliminary.   Nature  of  Contractual  Obligations 


TITLE   B 
VALIDITY 

§  490.   Restrictions  of  International  Law  .... 

§  491.   Restrictions  Imposed  by  a  General  Convention.     The 

Covenant  of  the  League  of  Nations       ..... 

§  492.   Capacity  to  Contract 

§  493.   Consent 

§  494.   Constitutional  Limitations 

Constitutional  Limitations  of  the  United  States 

a.  §  495.   Provisions  of  the  Constitution  .... 

b.  §  496.   Limitations  of  the   Agreement-making    Power    of 

the  United  States  as  a  Whole  .        .         .... 

c.  §§  497-502.    Matters    Pertaining    Directly    to    Affairs    of 

States  of  the  Union  ........ 

d.  §§  503-504.   Other  Problems  of  Constitutionality 

e.  §§  505-509.   The  Manner  in  Which  the  United  States  May 

Contract.     Agreements  Other  Than  Treaties   . 


6 
7 
8 
9 

10 

10 

12-22 
22-24 

27-33 


4. 


TITLE   C 
NEGOTIATION  AND  CONCLUSION 

§  510?   Persons  Capable  of  Concluding  Agreements 

§  511.   Full  Powers 

Formalities 

a.    §  512.   Language 

6.    §  518.    The  Alternat 

c.  §  514.    Protocols  .         ..... 

d.  §  515.   Signature.   Seal         .... 
Ratification 

a.    §  516.   Legal  Right  to  Withhold  It      . 
6.    §§  517-518.   Ratification  by  the  United  States 

c.  §  519.   Amendments  and  Reservations 

d.  §  520.    Exchange  of  Ratifications 

e.  §  521.   Proclamation    ..... 

xix 


35 
36 

38 
39 
39 
40 

41 
43-44 
45 
47 
48 


CONTENTS 


TITLE   D 
OPERATION   AND   ENFORCEMENT   OF  TREATIES 


§  522.   Date  of  Taking  Effect 

Some  Aspects  of  Performance 

a.  §  523.    In  General 

b.  §§  524-525.   Legislation  Necessary  to  Performance 

c.  II  526-529.   Judicial  Action         .... 


TITLE   E 
THE   INTERPRETATION   OF   TREATIES 

1.  §  530.   The  Nature  of  the  Problem 

2.  §  531.   Sources  of  Interpretation 

3.  §§  532-533.   Certain  Cases 

4.  §  534.    Declarations  of  Negotiators   . 

5.  §  535.   So-called  Rules  of  Construction 

6.  §§  536-537.   The  Most-Favored-Nation  Clause 

TITLE   F 
TERMINATION   OF   TREATIES 

1.  §  538.   Preliminary 

2.  §  539.   Notice  Pursuant  to  Agreement 

3.  §  540.   Later  Agreement  Superseding  Earlier  One 

4.  §§  541-545.   Changed  Conditions 

5.  §  546.   Abrogation  by  One  Party 

6.  §§  547-55L   Effect  of  War        .... 


49 

50 
51-52 
54-59 


61 
63 

64-66 
68 
69 

73-77 


79 
79 
80 

81-86 
88 

91-96 


PART  VI 

DIFFERENCES  BETWEEN  STATES.    MODES  OF 
REDRESS   OTHER  THAN  WAR 


TITLE   A 

AMICABLE   MODES 

Non-Judicial  Means 

a.    §  552.   Negotiation 99 

h.    §§  553-556.   Good  Offices  and  Mediation     ....     100-103 
c.    §§  557-558.   International  Commissions  of  Inquiry     .        .     105-108 
Judicial  Means 
a.   Arbitration 

(1)  §  559.   Definition Ill 

(2)  §§560-561.   Justiciable  Differences       ....     113-114 

XX 


CONTENTS 


(3)  §§  562-567.   Recourse   to   Arbitration   by   the   United  pages 
States    115-125 

(4)  §§  568-571.    The  Hague  Conventions  of  1899  and  1907 

for  the  Pacific  Settlement  of  International  Disputes  .  129-138 

(5)  §  572.    The  Court  of  ''Judicial  Arbitration"  Proposed 

by  the  Second  Hague  Peace  Conference         .         .         .  138 

(6)  §§  573-576.    The    Permanent    Court    of    International 

Justice  Designed  by  Advisory  Committee  of  Jurists,  1920  141-150 

(7)  §§  577-578.    Powers  and  Functions  of.  Arbitral  Tribu- 
nals          152-154 

(8)  §  579.   Payment  and  Distribution  of  Awards        .         .  155 

(9)  §  580.   Barring  of  Unpresented  Claims           .        .        .  156 
(10)    §§  581-583.   Finality  of  Awards 157-160 

b.  §  584.    Joint  Commissions    .......  161 

c.  §  585.   The  Covenant  of  the  League  of  Nations  .         .        .  163 


TITLE   B 
NON-AMICABLE   MODES  SHORT  OF  WAR 

1.  §  586.   In  General 

2.  §  587.   Withdrawal  of  Diplomatic  Relatioas 

3.  §  588.    Retorsion.    Retaliation  . 

4.  §§  589-591.    Reprisals 

5.  §  592.    Pacific  Blockade    . 

6.  §§  593-594.    Embargo 

7.  §  595.   Non-Intercourse     . 


166 
167 
169 

172-177 
179 

182-184 
185 


PART   VII 
DIFFERENCES  BETWEEN   STATES.    WAR 


§  596.   Preliminary 


TITLE   A 


187 


§  597.   The  State  of  War 


TITLE  B 


189 


TITLE  C 
KINDS 

1.  §  598.  General  in  Contrast  to  Limited  War 

2.  §  599.  Limited  War 

3.  §  600.  Insurrection.   Civil  War.   Rebellion 

4.  §  601.  Private  War 

xxi 


191 
192 
193 
194 


CONTENTS 


TITLE   D 
THE   COMMENCEMENT   OF   WAR 

1.  §  602.    Processes  of  Initiation 

2.  §  603.    Extent  of  Warning.     The  Hague  Convention  of  1907 

3.  §  604.   Civil  War 


PA,GE8 

195 
198 
200 


TITLE   E 

EFFECT  OF  WAR  ON   NORMAL  RELATIONS 
BETWEEN   OPPOSING   BELLIGERENTS 

1.  §  605.   On  Diplomatic  and  Political  Relations  .... 

2.  On  Intercourse  between  Territories  of  Opposing  Belligerents 

a.  §§  606-607.    General  Suspension  of  Communication    . 

b.  §§  608-610.    Contracts 

c.  §§611-613.    Judicial  Remedies.    The  Statute  of  Limitations 

d.  §  614.    Cessation  of  Interest 

e.  §  615.    Interference  with  Means  of  Communication 
§§  616-617.   Control  over  the  Persons  of  Resident  Alien  Ene- 
mies     ........... 

Control  of  Enemy  Property  within  the  National  Domain 

a.    §§  618-619.    In  General 

6.    §§  620-623.    Confiscation 

§  624.   Prohibition  of  Exports  

Neutral  Persons  and  Property  within  Belligerent  Territory 
a.   Persons 

(1)  §§  625-627.   Exaction  of  Military  Service      . 

(2)  §  628.    Military  Tax.    Other  Services     .... 
Place  of  Residence  and  Occupation     . 


3. 


(3)  §629. 
Property 
(1)  §630. 
(3^  §631. 
(3)  §632. 
(4) 


Taxation     . 

Forced  Loans      ....... 

Requisition  of  Property  ..... 
§§  633-637.  Neutral  Propprty  Temporarily  Within  the 
State.    The  Right  of  Angary  ..... 


202 

202-206 

209-214 

216-221 

222 

224 

226-230 

232-234 

235-241 

242 


244-253 
256 
257 

258 
259 
260 

261-271 


TITLE   F 
PACIFIC  INTERCOURSE  OF  BELLIGERENTS 

1.  §  638.   In  General 

2.  Military  and  Naval  Communications  and  Agreements 
a.    §  639.    Flags  of  Truce 


b.  §§  640-642.    Passports.   Safe-conducts 

c.  §  643.    Capitulations    ... 

d.  I  644.    Cartels      .... 

e.  §  645.    Suspensions  of  Arms 

/.    §§  646-647.    Truces  or  Armistices 

xxii 


Safeguards 


272 

273 

276-278 
278 
280 
281 

282-286 


CONTENTS 

TITLE   G  PAGE3 

LAND   WARFARE 

1.  Belligerent  Forces 

a.  §  648.    Belligerent  Qualifications  Generally  ....  290 

b.  §  649.    Regulations  Annexed  to  The  Hague  Conventions. 

Levee  en  Masse  ........  290 

c.  §  650.    Persons  Incapable  of  Military  Discipline  .         .  293 

d.  §  6.51.    Aliens 295 

e.  §  652.    Guerrilla  Bands.    Armed  Prowlers    ....  296 
/.    §§  653-654.    Divisions  of  Belligerent  Forces         ...  298 

2.  Belligerent  Measures  and  Instrumentalities 

a.  §  655.    Permissible  \  iolence  Generally.    Military  Necessity  299 

b.  §  656.    Sieges  and  Bombardments 302 

c.  §  657.    Seizure,    Destruction   and    Devastation   of   Enemy 

Property    ..........  306 

d.  §  658.    Measures  of  Concentration 309 

e.  §659.   Deceit 311 

/.    §§  660-663.    Certain  Implements  of  Destruction          .         .  31-3-319 
g.    §  664.    Prohibition   of    Certain    Measures    Respecting    the 

Treatment  of  an  Enemy  Person.    Denial  of  Quarter  .  323 

h.    §  665.    Inciting  Enemy  Troops  to  Desertion,  Treason  and 

Insurrection      .........  325 

i.    §  666.   Services  Not  to  Be  Exacted  from  an  Enemy  Person  326 

j.    §  667.   Retaliation 327 

3.  Prisoners  of  War 

a.    §§668-672.   Treatment 330-340 

6.    §§  673-674.    Termination  of  Captivity         ....     341-342 
c.    §§675-679.   Grounds  on  Which  Individuals  Are  Treated  as 

Prisoners  of  War 344-350 

4.  The  Sick  and  Woimded 

a.  §  680.   The  Geneva  Convention  of  1864       ....  350 

b.  §§  681-687.   The  Geneva  Convention  of  1906      .        .        .    352-360 

5.  Belligerent  Occupation 

a.    §  688-689.   Nature  and  Effect 361-365 

6.   The  Administration  of  Occupied  Territory 

(1)  §  690.    Legislative  and  Judicial  Functions     .         .         •  366 

(2)  §§  691-696.   Fiscal   and   Other   Measures   Respecting 
Property 368-378 

(3)  §§  697-700.   Measures  Relating  to  the  Persons  of  the 
Inhabitants 379-384 

(4)  §  701.   Miscellaneous  Measures.   Neutral  Consuls         .  385 

(5)  §  702.   Martial  Law 386 

TITLE   H 

MARITIME  WAR 
1.   Belligerent  Forces 

a.  §  703.   Private  Non-commissioned  Vessels  ....  389 

b.  §  704.   Privateers 390 

xxiii 


CONTENTS 


c.  §  705.   Vessels  of  War 

d.  §§  706-708.    Conversion  of  Volunteer,  Auxiliary  or    Sub- 

sidized Vessels    ......... 

e.  §  709.    Private  Vessels  Defensively  Armed    .... 

2.  Belligerent  Measures  and  Instrumentalities 

a.  §  710.  The  Special  Objects  of  Maritime  War.  General 
Limitations  Respecting  Their  Accomplishment 

h.  §§711-712.  Bombardment  of  Undefended  Places.  The 
Hague  Convention  of  1907        .... 

c.  §§  713-719.    Submarine  Automatic  Contact  Mines 

d.  §§  720-721.    War  Zones  and  Areas  of  Hostilities 

e.  §  722.    Torpedoes 

/.    §  723.    The  Cutting  of  Submarine  Telegraphic  Cables 
g.    Visit  and  Search 

(1)  §  724.    Nature  and  Purpose 

(2)  §§  725-730.    Mode  of  Exercise       .... 

(3)  §§  731-732.    Resistance  or  Evasion  of  Visit  and  Search 

The  Consequences  Thereof         .... 

(4)  §§  733-735.   Exemptions  from  Visit  and  Search    . 

3.  Attack 

a.  §  736.    Preliminary       ........ 

b.  Effect  of  Nature,  Use  or  Conduct  of  Enemy  Vessel  Encoun- 

tered 

(1)  §§737-740.   Unarmed  Vessels 

(2)  §§  741-743.    Armed  Vessels 

(3)  §  744.   Attempts  to  Escape  Capture.     Ruses 

(4)  §  745.    Certain  Conclusions 

c.  Mode  of  Conduct  with  Reference  to  Nature  of  Attacking 

Vessel 

(1)  §  746.    Surface  Craft 

(2)  §§747-749.    Submarine  Craft.     The  Controversy  with 

Germany    ......... 

d.  §§  750-751.   Attacks  on  Neutral  Vessels       .... 

4.  Capture 

a.  §  752.   Acts  Falling  Short  of  Capture 

b.  §  753.    What  Constitutes  Capture 

c.  §  754.    Probable  Cause 

d.  §§  755-758.   Effect  of  Capture     . 

e.  §  759.    Recapture.    Salvage 
/.  §  760.    Ransoms.    Safe-conducts 


PAGES 

395 

396-401 
402 


406 

408-409 

413-423 

423-428 

428 

430 

433 
435-446 

451-454 
456-459 

459 


5.   Exemptions  from  Capture 

a.  §  761.    In  General 

b.  §  762.   Enemy  Property  on  Neutral  Ships    .... 

c.  §§  763-765.    Enemy  Vessels  in  or  Sailing  for  Port  at  Out- 

break of  War.    Days  of  Grace    ...... 

d.  §§  766-770.    Vessels  Exempt  by  Occupation  or  Service 

e.  §§  771-772.    Proposed  General  Immunity  of  Enemy  Private 

Property 

xxiv 


460-i64 

465-468 

472 

475 


476 

477-485 
488-489 

491 
492 
493 
494-503 
505 
509 

510 

511 

515-520 
524-528 

529-532 


CONTENTS 

6.  Prisoners  of  War  pagbs 
a.    §§  773-774.   Persons  Who  May  Be  Regarded  as  Prisoners  of 

War * 535-537 

h.    §  775.    Treatment 538 

7.  Sick,  Wounded  and  Shipwrecked  Persons 

a.    §  776.    The  Situation  Prior  to  The  Hague  Convention  of 

1007 539 

h.    §§  777-781.   The  Hague  Convention  of  1907        .        .        .     540-545 
c.    §  782.    Results  of  the  World  War 546 

8.  National  Character  in  Relation  to  Propertj'  at  Sea 

a.  §  783.    General  Liability  of  Enemy's  Property  to  Seizure     .  547 

h.  §§  784-788.   Ships        .' 548-555 

c.  §§  789-793.    Enemy  Character  of  Cargoes  ....  557-566 

d.  §§  794-796.   Corporations 567-569 

TITLE   I 
CONTRABAND 


1.  §§  797-798.   Prehminary 

2.  §  799.   Early  Treaties  of  the  United  States 

3.  Controversies  Respecting  Certain  Articles 

a.    §§  800-805.    Foodstuffs 

h.    §§806.   Certain  Other  Articles.    Fuel. 

4.  Destination 
a.    §  807.    Necessity  of  Hostile  Character 
6.    §§808-813.   The  Doctrine  of  Continuous  Voyage 

5.  Penalty 
a.    §  814.    Nature  of  the  Traffic         .... 
h.    §  815.    Penalty  for  Carriage  .... 
c.    §  816.    Treatment  of  the  Cargo    .... 

6.  Indirect  Unneutral  Service.    The  Carriage  of  Enemy  Persons 

and  Despatches 

a.    §  817.    In  General 

6.    §§  818-820.    Persons  Subject  to  Interception 

c.  §  821.    Enemy  Despatches 

d.  §  §  822-823.   Penalty  for  Carriage  of  Persons  and  Despatches 


572-575 
577 

580-594 
597 

601 
602-626 

629 
630 
634 


635 
636-642 

643 
644-645 


TITLE   J 
BLOCKADE 


1.  §§824-825.   Preliminary 647-660 

2.  Certain  Conditions  of  Validity 

a.  §  826.   Authority  to  Institute.   Acts  of  Unrecognized  Insur- 

gents           651 

b.  §  827.    Effectiveness 6.55 

c.  §§  828-832.   Extent  and  Limitations 657-666 

XXV 


CONTENTS 

3.  Breach  of  Blockade  pages 

a.  §§833-834.   Announcement  to  Neutral  States.   Notification 

of  Neutral  Vessels 669-672 

b.  §§  835-836.    Acts  Constituting  a  Breach  and  Dealt  with  as 

Such.    Place  of  Capture 675-678 

c.  §  837.   Capture  and  Penalty.    Deposit  of  Offense         .         .  680 

4.  Ameliorations 

a.    §  838.    Vessels  in  Distress 682 

&.    §  839.    Neutral  Ships  in  Blockaded  Ports.    Days  of  Grace   .  683 

c.  §  840.   Ships  of  War.     Diplomatic  Agents     ....  685 

d.  §  841.   Special  Concessions 687 

5.  §  842.   Termination 685 

6.  §  843.   Obstruction  of  Navigable  Channels        ....  690 


TITLE   K 
NEUTRALITY 

The  Duties  of  a  Neutral  State 

a.  §§  844-847.   The  Nature  of  the  Obhgation  .         .         .     692-697 

b.  §  848.    Governmental  Abstention  from  Participation.   Mis- 

cellaneous Activities 698 

c.  Duties  of  Prevention 

(1)  §849.   In  General 702 

(2)  §§  850-852.   Acts  of  a  BeUigerent  in  Defiance  of  the 

Rights  of  the  Territorial  Sovereign  as  Such        .         .     703-708 

(3)  §§853-856.   Other  Uses  of  Neutral  Territory  Associated 

with  the  Prosecution  of  War  and  Not  Necessarily 
Attributable  to  a  Belligerent  Government  .         .     710-721 

(4)  §§  857-865.   Asylum  in   Maritime  War        .         .         .     723-744 

(5)  §  866.    Asylum  to  Belligerent  Land  Forces    .         .         .  745 

d.  Belligerent  Acquisition  from  Neutral  Territor\'  of  Aid  Which 

the  Territorial  Sovereign  is  Not  Obliged  to  Check 

(1)  §§  867-868.   The  Exportation  of  Munitions  of  War      .     748-754 

(2)  §  869.   Loans  to  Belligerents 755 

(3)  §  870.    The    Departure    of    U^norganized    Individuals 

Contemplating  and  Entering  Belligerent  Service        .  757 

(4)  §§  871-872.   Belligerent  Services  by  Neutral  Nationals 

on  the  High  Seas ,     759-761 

(5)  §  873.    The  Fitting  Out,  Transfer  and  Departure    of 

Vessels  Not  Adapted  or  Intended  Primarily  for  Hos- 
tile Operations 762 

(6)  §  874.    Expressions  of  Opinion  by  Private  Persons         .  764 

(7)  §  875.   Qualified  Neutrality 765 

e.  Enforcement  of  Neutral  Duties.   Some  Aspects  of  American 

Procedure 

(1)  §  876.    Neutrality  Proclamations 767 

(2)  §  877.    Legislative  Action 768 

(3)  §  878.   Executive  Action        .......  770 

xxvi 


CONTENTS 


/. 


Judicial  Action 

Extraterritorial  Pursuit 

Duties  Resulting  from  Extraterritorial  Jurisdic- 


'Due 


(4)  §879. 

(5)  §880. 

(6)  §881. 
tion    ........ 

The  Requisite  Measure  of  Exertion 

(1)  §  882.   The  Rules  of  the  Treaty  of  Washington. 

Diligence"  ........ 

(2)  §  883.    The  Hague  Convention  of  1907 

q.    §§  884-885.    The  Question  of  Belligerency   .         .         .         . 

h.    §  886.    Effect  of  Armistice 

Inviolability  of  Neutral  Territory 

a.    §  887.    The  Duty  of  the  Belligerent 

h.    §  888.    The  Duty  of  the  Neutral 

§  889.   The  Law  of  Neutrality  in  Relation  to  World  Organiza- 
tion         


PAGES 

773 

775 

776 


778 

780 

781-784 

785 


786 
792 

793 


TITLE   L 
AMERICAN  PRIZE   COURTS  AND  PROCEDURE 

1.  §  890.   Courts 796 

2.  Jurisdiction 

a.    §  891.   To  Adjudicate 798 

h.    §  892.   To  Award  Damages 800 

3.  Jurisprudence 

a.    §  893.    In  General 802 

h.    §§  894-895.   Grounds  of  Foreign  Complaint.   The  Discus- 
sion between  the  United  States  and  Great  Britain  during 

the  World  War 804-810 

c.    §  896.    Need  of  an  International  Tribunal    .         .         .         .  811 

4.  Some  Aspects  of  American  Procedure 

a.    §  897.   In  General 812 

h.    §  898.    Examination  in  Prepnralorio 813 

c.  §899.    Order  for  Further  Proof 814 

d.  §900.   Discussion  with  Great  Britain  during  The  World  War  815 

e.  §  901.    Concerning  Rules  of  Evidence           .         .         .         .  817 

5.  §§  902-903.    Condemnation 818 


TITLE   M 
TECHNICAL  ASPECTS   OF  THE   TERMINATION   OF  WAR 
1.    Modes  of  Termination 


a. 

§904. 

Cessation  of  Hostilities     ..... 

820 

b. 

§  905. 

Formal  Declaration  by  One  Party    . 

821 

c. 

§  906. 

Public  Proclamation  in  Relation  to  a  Civil  War 

823 

d. 

§907. 

Subjugation       ....... 

823 

e. 

§908. 

Agreement 

xxvii 

824 

CONTENTS 


Procedure  Peculiar  to  the  Negotiation  of  a  Treaty  of  Peace 

a.  §  009.   The  Public  Exchange  of  Views  of  Responsible  States 

men  ........ 

b.  §  910.    Preliminary  Negotiations 

c.  §§  911-912.    Agreements  Preliminary  to  Peace    . 

d.  §§  913-920.   The  Conclusion  of  a  Definitive  Treaty 
§  921.   Certain  Effects  of  the  Termination  of  War    . 
§  922.    The  Doctrine  of  Postliminium 


Index 


827 
828 
831-833 
835-852 
853 
856 
859 


XXVlll 


TABLE  OF   CASES 


[References  are  to  pages] 


Abbiatti  Case,  I,  480 

Abell  V.   Penn.   Mut.  Life  Ins. 

Co.,  II,  211 

Accessory  Transit  Co.  Case,     I,  488 
Acquatella  Case,  I,  539 

Ada,  The,  I,  509 

Adams  v.  Akerlund,         I,  354,  II,  67 
Adela,  The,  II,  679,  787 

Adger  v.  Alston,  II,  201,  823 

Admiral,  The,     II,  650,  672,  678,  798 
Adriatic,  The,  I,  443,  766 

Adula,  The,  II,  615,  670, 

672,  676,  690,  815 
Adutt,  In  re,  I,  586,  587 

Adventure,  The,         II,  496,  508,  818 
Advocate    General    of    Bengal 
V.     Ranee      Surnomoye 
Dossee,  I,  199 

^olus.  The,  I,  400 

Africa,  The,  II,  603 

Agency  of  Canadian  Car  &  F. 

Co.  V.  American  Can  Co.,  I,  730 
Aggi,  The,  II,  453 

Aguirre  v.  United  States,  II,  62 

Ah  Lung,  In  re,  II,  59 

AhYup,  Inre,  1,628 

Aigburth,  The,  II,  563 

Ainsa  v.  New  Mexico  and  Ari- 
zona Railroad  Co.,  I,  228, 
230,  240 
Akhay  Kumar  Mozumbar,    In 

re,  I,  628 

Aktien  Gesellschaft,  etc.  v.  Lev- 
instein, Ltd.,  II,  218 
Alaskan  Boundary  Case,    I,  193,  195, 
242,  253,  258,  262,  271, 
II,  65,  118,  162 
Albany  v.  Derby,  I,  618 
Albergen,  The,  I,  821 
Albo,  The,                                    II,  557 
Alciator  v.  Smith,                        II,  217 
Alcinous  V.  Nigrou,                     II,  217 
Alexander,  The  (8  Cranch,  169), 

II,  492 
(Hurst  and  Bray,  II,  86), 

II,  525 


Alexander  v.  Roulet,  I,  200 

Alexander's  Cotton,  Mrs.,  I,  528, 

II,  375,  561 
Alsberry  ?;.  Hawkins,  1,662 

Alsop  Case,  I,  485,  486,  II,  30,  156 
Altman  &  Co.  v.  United  States, 

II,  28 
Alvarez    y   Sanchez    v.    United 

States  (216  U.  S.  167),    I,  236 

(42  Ct.  CI.  458),  1,236 

Alverto,  In  re,  I,  628 

Alwina,  The,  II,  634 

Ambrose  Light,  The,  I,  415 

Amedie,  The,  I,  408 

Amelia,  The  (1  Cranch,  1), 

II,  191   192,  507 

(4  Phila.  417),  527 

American      Banana      Co.      v. 

United  Fruit  Co.,  I.  386, 

387,  393,  423,  424,  452 
American    Exchange    Bank    v. 

Palmer,  II,  235 

American     Insurance     Co.     v. 

Canter,  I,  176,  202,  624 

American    Railroad    of    Porto 

Rico  V.  Didricksen,  I,  618 

Amiable  Isabella,  The,  II,  390,  493 
Amiable  Nancy,  The,  II,  800,  801 
Amistad,  The,  I,  412,  II,  70 

Amistad  de  Rues,  La,  II,  737, 

774,  775 
Amy  Warrick,  The,  II,  805 

Anderson       and       Thompson 

Case,  I,  623 

Anderson,  In  Re  Estate  I,  367 

Anderson,  Ex  parte,  I,  396 

Angelus  v.  Sullivan,  II,  254 

Anglo-American,  The,  II,  566 

Anna,  The,  I,  174 

Anna  Catharina,  The,  11,  564 

Anna  Maria,  The,  II,  801 

Anne,  The,  I,  794,  818,  II,  787,  814 
Antelope,  The,  I,  20,  407,  408 

Anthon  v.  Fisher,  II,  509 

Antonia  Johanna,  The,  II,  514,  563 
Antrey  Case,  I,  529,  530 


XXIX 


TABLE  OF  CASES 


[References  are  to  pages] 


ApoUon,  The,     I,  116,  387,  419,  425, 

II,  801 
Appam,  The  (see  also  Steam- 
ship Appam,  The)       II,  733, 
734,  735,  736,  737,  775 
Arabia,  The,  II,  587 

Arce  V.  State,  I,  434 

Argo,  The,  II,  517,  518 

Ariadne,  The,  II,  548 

Arkansas  v.  Mississippi,       I,  246,  247 
V.  Tennessee,  1,246,247 

Aroa  Mines  Case,  I,  473,  539, 

II,  64,  65,  66,  71 
Arrogante  Barcelones,  The,  II,  774 
Artan,  Re,  I,  573 

Astiazaran  v.  Santa  Rita  Land 

and  Mining  Co.,        I,  236,  240 
Astrea,  The,  II,  508 

Atalanta,  The  (3  Wheat),         II,  456 
(6Ch.Rob.),  11,646 

Athanasios,  The,  I,  443 

Atlantic,  The,  II,  631 

Atlantic   and  Hope    Insurance 

Companies  v.  Ecuador,    II,  86 
Attualita,  The,  I,  443,  444 

Aubrey  Case,  I,  624 

Australasia  and  China  Tele- 
graph Co,  Ltd.,  V.  United 
States,  I,  231 

Austro-Hungarian     Consul     v. 

Westphal,      I,  816,  817,  II,  77 
Ayer  &  Lord  Tie  Co.  v.  Kentucky, 

I,  362 

Baasch  and  Romer  Case,      1, 485, 490 
Bacigalupi  Case,  I,  529 

Bader,  In  re,  I,  100 

Bagaley,  William,  The,    II,  211,  212, 
547,  548,  549,  563,  566 
Baglieri's  Estate,  In  re,  I,  815 

Bagnola's  Estate,  In  re,  I,  817 

Bahuaud  v.  Bize,  I,  354 

Baigorrv,  The,  II,  452,  556,  679 

Baiz,  In  re,  I,  717,  794 

Baker  v.  Portland,  II,  78 

Baldwin  Case,  I,  506,  510 

Baldy  v.  Hunter,  I,  79 

Balfour,  Guthrie  &  Co.  v.  Port- 
land and  Asiatic  S.S.  Co., 

II,  584 
Ballistini  Case,  I,  497,  508,  562 

Baltic,  The,  II,  634 

Baltica,  The,  II,  552,  557 

Balto,  The,  II,  625 

Bangor,  The,  II,  788 


Banning  v.  Penrose,  I,  672 

Barclay  Case,  I,  483 

Barker  v.  Harvey,        I,  228,  236,  240 
Barlow  Case,  I,  558 

Barrett  and  Walker  Case,  I,  539 

Bartram  v.  Robertson,  II,  74 

Barzizas  v.  Hopkins,  I,  616 

Bas  V.  Tingy,  II,  191,  192,  193 

Batesville    Institute    v.  Kauff- 

man,  II,  201,  823 

Bautista,  In  re,  I,  628 

Beales,    Nobles    and    Garrison 

Case,  1, 558 

Beck,  Ex  parte,  II,  255 

Beckman  &  Co.  Case,  II,  259 

Behrendt,  In  re,  I,  599,  600 

Behrensmeyer  v.  Kreitz,  I,  626 

Belcher  Case,  I,  678 

Belgenland,  The,  I,  398,  822 

Bell  V.  Kennedy,  II,  560 

V.  Reid,  II,  557 

Belief ontaine  Improvement  Co. 

V.  Niedringhaus,  I,  246 

Bello  Corrunes,  The,      I,  818,  II,  775 
Bembelista  Case,  I,  527 

Benito  Estenger,  The        II,  551,  561 
Benny  v.  O'Brien,  I,  614 

Bensley  Case  (Second),  I,  510 

Bensley  Case  (Third),  I,  510 

Benson  v.  McMahon,  I,  586,  587, 

590,  595,  600,  604 
Bercier  Case,  I,  527 

Bering    Sea    Arbitration.     See 

Fur  Seal  Arbitration. 
Berlin,  The,  II,  525 

Bermuda,  The,  II,  604,  605,  609, 

610,  611,  614,  631, 
632,  634,  679,  680 
Bernat,  Ex  parte,  I,  96 

Bernon,  The,  II,  559 

Bessho  V.  United  States,  I,  628 

Betsey,  The,  II,  62,  63,  81 1 

Betty  Cathcart,  The,  II,  774 

Bhagat  Singh  Thind,  In  re,         I,  628 
Bingham  v.  Bradley,  I,  602,  605 

Bird,  The,  II,  632 

Birge-Forbes  Co.  v.  Heye,  II,  220 

Bister  Case,  I,  620 

Blackstone  v.  Miller,  I,  362,  366 

Blankard  v.  Galdv,  I,  202 

Blazekovic,  Ex  parte,         II,  254,  255 
Blodgett  Case,  I,  528,  529 

Blumenkron  Case,  I,  527 

Blumhardt  Case,  I,  509 

Blythe  v.  Hinckley,  I,  358 


XXX 


TABLE   OF  CASES 


[References  are  to  pages] 


Bobrik,  The,  II,  531 

Boedus  Lust,  The,  II,  185,  196 

Boffolo  Case,  I,  101,  102,  103 

Bolivar  Railway  Co.  Case,        I,  545 
Bolmer  v.  Edsall,  I,  255 

Bond  Cases,  I,  473 

Bond  V.  Owen,  II,  205 

Bong  V.  Campbell  Art  Co.,  I,  371 

Bosque  V.  United  States,  I,  625 

Botiller  v.  Dominguez,  I,  227 

Boulton,  Bliss  &  Dallett  Case, 

I,  473,  558 
Boulton  V.  Dobree,  II,  217 

Bound  Brook,  The,  I,  398 

Boussmaker,  Re,  II,  220 

Boyd  V.  Thayer,  I,  622,  624,  628 

Boynton  v.  Blaine,  II,  161 

Brandon  v.  United  States,  I,  528, 

II,  600 
Breen,  In  re,  I,  599 

Brig  Alerta,  The  II,  774,  775 

Concord,  The  I,  399 

Freemason     v.     United 
States,  I,  509 

Napier,  The  I,  509 

Briggs  V.  United  States,     II,  209,  375 
Brignone  Case,  I,  621 

Brissot  Case,  I,  621 

British      Guiana- Venezuelan 
Boundary  Arbitration, 

I,  165,  166,  192,  271 
British    South    Africa    Co.    v. 
Companhia  de  Mozam- 
bique, I,  425 
Bronner  Case,  I,  508 
Brown  v.  Duchesne,  I,  395 
V.  Gardner,                          11,209 
V.  Hiatts,     11,201,220,223,823 
V.  United     States,    II,  233,  237, 

390 
Browne  v.  Dexter,  I,  616 

Bryant  v.  United  States,      I,  584,  604 
Buck  V.  Beach,  I,  363,  364 

Buena  Ventura,  The,         II,  517,  801 
Buentello  Case,  I,  529,  531 

Bugajewitz  v.  Adams,  I,  100 

Bullen  V.  Wisconsin,  I,  366 

Burke  V.  Wells,  I,  363 

Burn  Case,  I,  502,  509 

Buron  v.  Denman,  II,  802 

Burthe  v.  Denis,  I,  479 

Burton  v.  Burton 

(26  How.  Pr.),  I,  648 

(1  Keyes),  I,  645 

Bush  V.  United  States  II,  50 


Buttenuth  v.  St.  Louis  Bridge 

Co.,  I,  246,  247 

Buzzi  Case,  I,  651 

Byfield,  The,  II,  688 

Calchas,  The,  II,  446,  450 

Calderwood  Case,  I,  645 

Caldwell  v.  Barclay,  I,  807 

V.  Van  Vlissengen,  I,  395 

Calvin's  Case  1,202,612 

Cameron,  In  re,  I,  634 

Cameron   Septic   Tank   Co.    v. 

Knoxville,  II,  64 

Campbell  v.  Gordon,  I,  649 

V.  Hall,  I,  202,  388 

V.  Mullett,  I,  484 

Camy  Case,  I,  483 

Canevaro  Case,  I,  480,  484,  485,  620 
Canton,  The,  II,  270 

Capitation  Tax  Case,  II,  66 

Cargo  of  Ship  Emulous,  II,  237 

Cariiio  v.  Insular  Government,  I,  200 
Carioto,  In  re,  I,  819 

Carhsle  v.  United  States,  I,  388 

Carlo  Poma.  The,  I,  443,  447 

Carlos  F.  Roses,  The,       II,  564,  565 
Carneal  v.  Banks,  I,  354,  II,  93 

Carohna,  The,  II,  635 

Caroline,  The,  II,  638,  646 

Carpigiani  v.  Hall,  I,  814 

Carrington   v.    Merchants'  Ins. 

Co.,  II,  613,  631,  634 

Carson  v.  Dunham,  II,  209 

Carthage,  The,  II,  438,  617,  801 

Gary  v.  South  Dakota,  II,  19 

Casablanca  Case,  I,  432,  II,  296 

Casdagli  v.  Casdagli,  I,  428 

Casper,  In  re,  I,  819 

Castel  Case,  I,  526 

Castelains  Case,  I,  530 

Castioni,  Re,  I,  573,  574 

Castro  V.  De  Uriarte 

(12  Fed.),  I,  598 

(16  Fed.),  I,  596,  II,  53 

Catlett  i>.  Pacific  Ins.  Co.,  I,  827 

Cernyar's  Estate,  In  re,  I,  819 

Cerri    v.    Akron-People's    Tel. 

Co.,  I,  803 

Cerruti  Case,  I,  486 

Cessna  v.  United  States,  I,  239 

Chae    Chan    Ping    v.    United 

States,  II,  59 

Chambers  v.  Steamship  Kestor,  I,  395 

Chamizal  Case,  I,  246,  247,  248, 

II,  72,  119,  120 


XXXI 


TABLE  OF  CASES 


[References  are  to  pages] 


Chappell  V.  Jardine,  I,  203,  II,  21 
Charkieh,  The 

(L.  R.  8  Q.  B.),  I,  443 

(L.  R.  [1873]  4   Adm.  & 
Ecc),  1,27 

Charles  v.  Monson  and  Brim- 
field  Mfg.  Co.,  I,  617 
Charlotte  Christine,  The,  II,  676 
Charlton,  Ex  parte,  I,  579,  587, 
589,  595,  601 
Charlton  o.  Kelly,  I,  579,  589 
Charming  Betsy,  The,  I,  13,  II,  507 
Chauncey  v.  Chile,  I,  486 
Chavez,  In  re,  I,  202 
Cheek  Case,  I,  390,  391,  550 
Cherokee  Nation  v.  Georgia,  I,  19 
Cherokee  Tobacco,  The  II,  9,  59 
Chesapeake,  The,  I,  411,  413 
Chesapeake  &  Ohio  Ry.  Co.  v. 

United  States,  II,  201 

Cheshire,  The,  II,  548,  563, 

676,  679 
Chester  v.  The  Experiment,  II,  557 
Chew  Heong  v.  United  States,  II,  59 
Chicago  &  Pacific  Ry.  Co.  v. 

McGhnn,  I,  202 

Chi  Lung  v.  Freeman,  I,  97 

Chinese  Exclusion  Case,  I,  95,  100 
Chin  Yow  v.  United  States,  I,  100 
Chirac  v.  Chirac,  I,  354,  355,  626, 
II,  15,  55 
Chourreau  Case,  II,  66 

Church  V.  Hubbart,  I,  116,  418,  828 
C.  H.  White,  The,  I,  116,  254,  421 
Cienfuegos,  In  re,  I,  601 

Circassian,  The,       II,  650,  666,  678, 
679,  680,  690 
Clan  Grant,  The  II,  560,  563 

Clark  Case,  I,  556 

Clarke  v.  Morey,  II,  218 

Cleworth  Case,  I,  527 

Clinton  Bridge,  The,  II,  59 

Coffee  V.  Groover,  I,  236 

Cohn  V.  Jones,  I,  583,  584 

Cole  Case,  I,  527 

Collet  V.  Collet,  I,  626 

Collins,  In  re,  I,  585 

V.  Johnston,  I,  585 

V.  O'Neil,  I,  583,  585 

Colonia,  The,  II,  553 

Colombia  v.  Cauca  Co.,  II,  153 

Comegys  v.  Vasse,  II,  152,  157 

Comitis  V.  Parkerson,  I,  630 

Commercen,  The,  II,  584, 

585,  605,  631 


Commercial  Cable  Co.  v.  Burle- 
son, II,  287 
Commonwealth  v.  Chapman,    I,  201, 

202 
V.  Deacon,  I,  568 

V.  Lane,  I,  425 

V.  Luckness,  I,  397 

V.  Manchester,  I,  260 

V.  White,  I,  422 

Compagnie  Generale  des  Eaux 

de  Caracas,  I,  562 

Conception,  La,  II,  774 

Confederate  Debt  Cases  of  Bar- 
rett and  Walker,  I,  539 
Conn  V.  Penn,  II,  212,  223 
Conrad,  The,  II,  453 
Conrad  v.  Waples,  II,  209,  210,  238 
Conserva,  The,  I,  77 
Constancia,  La,  I,  477 
Constantia,  The,  II,  565 
Constitution,  The,  I,  436,  539 
Consul  of  Spain  v.   Consul  of 

Great  Britain,  II,  734 

Continental    Tyre    &    Rubber 

Co.,  Ltd.  V.  Daimler  Co., 

Ltd.,  II,  569 

Cook,  In  re,  I,  634 

V.  Sprigg,  I,  231 

Cooley  V.  Golden,  I,  247 

Cooper  Case,  I,  530 

Cooper,  In  re,  I,  272,  389, 

II,  58 
Coosa,  The,  II,  679 

Coppell  V.  Hall,  I,  793 

Cordaro,  In  re,  I,  630 

Cordova  v.  Grant,  I,  272,  II,  58 

Cornelius,  The,  II,  679 

Cornu  V.  Blackbume,  II,  509 

Coro  and  La  Vela  Railway  & 

Improvement  Co.  Case,  1,553 
Corvaia  Case,  I,  480,  620,  677 

Cosgrove  v.  Winney,  I,  583 

Cosmopolite,  The,  II,  205 

Costa  Rica  v.  Nicaragua,  II,  5 

Costa  Rica  Packet,  The,  I,  255,  406 
Cotesworth  &  Powell  Case,  I,  512 
County  of  St.  Clair  v.  Loving- 

ston,  I,  174 

Cox  and  Elkins  Case,  I,  555 

Crane  v.  New  York,  I,  357 

Crapo  V.  Kelly,  I,  406,  423 

Crawford  and  McClean  v.  The 

"William  Penn,"  11,209 

Creole,  The,  I,  400,  401 

Crimdon,  The,  I,  444 


XXXll 


TABLE  OF  CASES 


[References  are  to  pages] 


Cross  V.  Harrison, 


I,  203, 
II,  365,  369 

Crossman  Case,  II,  66 

Culberson  Case,  I,  529 

Curlew,  The,  II,  270 

Cushing  V.  Laird,  II,  800 

Cushing,'-  Admin'r,    v.    United 

States,  II,  403 

Czar-Nicolai  II,  II,  221 

D'Adamo's  Estate,  In  re,  I,  812, 

815,  816,  817,  II,  77 
Dacia,  The,  II,  552 

Daifjie,  The,  II,  529 

Daigle  v.  United  States,  II,  58 

Daimler  Co.,  Ltd.  v.  Continen- 
tal Tyre  and  Rubber  Co., 
Ltd.,  II,  569,  570 

Dainese  v.  Hale,  I,  458 

V.  United  States,  I,  458 

Dale  V.  Merchants'  Mut.  Mar. 

Ins.  Co.,  I,  417 

V.      New    England    Mut. 

Mar.  Ins.  Co.,  I,  417 

Dallemagne  v.  Moisan,  I,  822 

Danckebaar  Africaan,  II,  564 

Darby  v.   The   Brig  Ernstern, 

II,  555 
Darnell  v.  Indiana,  I,  363 
Dashing  Wave,  The,        II,  494,  679, 

801 
Davis,  The,  I,  444 

Davis  V.  Concordia,  I,  201, 

II,  50,  59 
V.  Hall,  I,  617 

Davy  Case,  I,  511 

Dawson,  In  re,  I,  607 

Day  and  Garrison  Case,  I,  552 

Deans,  In  re,  I,  634 

De  Caro  Case,  I,  509,  II,  260 

De  Forge  Case,  I,  544 

De  France  v.  Howard,  I,  355 

De  Ganay  v.  Lederer,         I,  363,  365 
De  Garmendia  Case,  I,  550 

De  Haber  v.  Queen  of  Portugal, 

I,  446 
De  Hammer  Case,  I,  621 

De  Lacey  v.  United  States,      II,  228 
De  la  Croix  v.  Chamberlain,     I,  236, 

239,  240 
Delagoa  Bay  Railway  Case,     I,  489, 

547,  550 
Delassus  v.  United  States,         I,  236, 

237,  239 
Delaware,  The,  I,  380 


Delaware,  L.  &  W.  R.  Co.  v. 

Petrowsky,  I,  647 

De  Lemos  Case,  II,  66 

De  Leon  Case,  I,  678 

De  Lima  v.  Bidwell,  I,  204 

Deming  v.  United  States,  I,  561 

Dent  V.  Emmeger,  I,  237 

Derbec  Case,  I,  517,  523 

Deucatte  Case,  I,  482 

Devine  Case,  I,  542 

De  Witt  Heirs  Case,  I,  557 

Diana,  The  (1  Dodson),  I,  408 

(7  Wall.),  II,  679,  683 

Dickens  Case,  I,  512 

Dillon,  In  re,  I,  808 

Dimond  Case,  I,  483 

Dinehart,  Ex  parte,  I,  597,  598 

Direct  United  States  Cable  Co. 
V.  Anglo-American  Tele- 
graph Co.,  I,  260 
Distington  Hematite  Iron  Co., 
Lim.  V.  Passehl  &  Co., 

II,  211 
Divina  Pastora,  The,  I,  77,  271 

Dix  Case,  I,  545 

Doe  V.  Acklam,  I,  622 

V.  Braden,  II,  58 

Dogger  Bank  Case,  II,  106,  107 

Dolphin,  The,  II,  606,  614,  615 

Dominguez  Case,  Fernando,      I,  651 
Donaldson  v.  State,  I,  355 

Donaldsonville  Cases,  I,  527 

Donnell's  Executor,  I,  558 

Donoughho  Case,        I,  497,  508,  523 
Dooley  v.  United  States 

(182  U.  S.),  I,  204,  205, 

II,  47,  50,  363,  364,  365,  369 

(183  U.  S.),  I,  204 

Dorsey  v.  Brigham,  I,  633 

Dos  Hermanos,  The 

(2  Wheat.),  II,  453,  493, 

566,  813,  814,  815 

(10  WTieat.),  II,  389,  390 

Dow,  In  re,  I,  628 

V.  Johnson,  II,  849 

V.  United  States,  I,  628 

Dowell  V.  Cordwell,  I,  473 

Downes  ;;.  Bidwell,       I,  94,  203,  204. 

II,  9,  19 
Downs  V.  United  States,  II,  75 

Dresch  Case,  I,  529 

Driggs  Case,  I,  507 

Dryden  v.  Swinburne,  I,  642 

Duke  of  Brunswick  v.  King  of 

Hanover,  I,  446 


XXXlll 


TABLE   OF  CASES 


Dunbar  &  Belknap  Case, 
Dunham  v.  Lamphere, 
Dupont  V.  Pichon, 
Duus,  In  re, 
V.  Brown, 


Earn  Line  S.S.  Co.  v.  Suther- 
land S.S.  Co.,  I,  392 
Eastern  Extension,  Australasia 
and  China  Telegraph  Co., 
Ltd.  V.  United  States 
(231  U.  S.),               I,  231,  546 
(251  U.  S.),               I,  231,  546 
(48  Ct.  CI.),                      I,  231 
Edgerton  Case,                     I,  529,  539 
Eichhorst  i'.  Lindsey,                   I,  630 
Eidman  v.  Martinez,                    I,  366 
Eigendorff  Case,                           I,  481 
Eldredge's  Case,                   I,  483,  556 
Eleanor,  The  (2  Wheat.),        II,  434, 

435,  436 
(Edwards),  1, 400 

Elias  V.  Ramirez,  I,  599,  602,  604 

Ehzabeth,  The,  II,  549 

Elk  V.  Wilkins,  I,  613,  628 

Ella  Warley,  The,  II,  269 

Ellis,  In  re,  I,  628 

Elphic  V.  Hoffman,  II,  21 

Elsebe,  The,  II,  458 

Ely's  Adm.  v.  United  States,     I,  200, 
236,  240 
Emerson  v.  Hall,  I,  473 

Emperor  of  Austria  v.  Day,         I,  63, 

272 
Empress,  The,  II,  679 

Enterprise,  The  I,  400,  401 

Ernst  Merck,  The,  II,  552 

Esposito  V.  Bowden,  II,  211 

Essex,  The,  II,  604 

Ester,  The,  I,  398 

Estrella,  The,  II,  737,  774,  775 

Experiment,  The,  II,  558 

Expulsion  Cases,  I,  103 

Ezeta,  In  re,  I.  573,  574,  577, 

593,  600,  604 

Faber  Case,  I,  293 

Faber  t'.  United  States,  II,  71 

Fairfax's   Devisee  v.   Hunter's 

Lessee,  I,  355,  II,  15 

Fama,  The,  II,  50 

Fanny,  The,  II,  456 

Farez,  In  re,  I,  596,  600 

Felicity,  The,  II,  497,  499,  501 

Fergus,  In  re,  I,  596 


[References  are  to  pages] 

I,  529      Ferrelle,  In  re,  I,  597 

I,  260      Fidehty   and    Columbia    Trust 
I,  756  Company  v.  Louisville, 

I,  629  I,  363,  366 

I,  367      Field  v.  Clark,  II,  28 

Fifield  v.  Insurance  Company, 

I,  63,  417 
Finn  Case,  I,  485 

Fish  V.  Stoughton,  I,  676 

Fitch  Case,  I,  479 

Fitzsimmons   v.    Newport   Ins. 

Co.,  II,  671 

Five  Per  Cent  Discount  Case,     II,  75 
Flannagan,    Bradley,    Clark   & 

Co.  Case,  I,  552,  558 

Fleming  v.  Page,  I,  176,  203, 

II,  363 
Florence  H.,  The,  I,  443 

Florida  v.  Furman,  I,  228,  240 

Flutie  Cases,  I,  652 

Fong  Yue  Ting  v.  United  States, 

I,  95,  100,  101,  103,  II,  59 
Ford  V.  Surget,  I,  417,  II,  307 

Forte,  The,  I,  442 

Fortuna,  The 

(1  Dodson),         I,  408,  II,  549 

(3  Wheat.),  II,  564 

Foster  Case,  I,  529 

Foster  &  Elam  v.  Neilson,  1, 63, 

271,  272,  389,  II,  50,  58 
Four    Packages    of    Cut    Dia- 
monds V.  United  States,    II  29 
Fourteen    Diamond    Rings    i'. 

United  States,      I,  204,  II,  69 
Fox,  The,  II,  805,  807 

Foxcraft     and     Galloway     v. 

Nagle,  II,  222 

Frances,  The 

(8  Cranch),  II,  560, 

564,  565, 814 

(9  Cranch),  II,  565 

Frances  and  Eliza,  The,  II,  170 

Franciska,  The 

(10  Moore,  P.C),  II,  662,  687 

(2  Spinks),  II,  687 

Frantz's  Appeal,  I,  361 

Frau  Houwina,  The,  II,  605 

Frear  Case,  I,  558 

Frederickson  t\  Louisiana,  I,  366 

Freeland  v.  Williams,  II,  849 

Freemason,  The  Brig.     See  Brig 

Freemason. 
Frelinghuysen  v.  Key,        II,  160,  161 
French  Republic  v.  Inland  Nav. 

Company,  1, 446 


XXXIV 


TABLE  OF  CASES 


[References  are  to  pages] 


Fretz  V.  Stover,  II,  212 

Frevall  v.  Bache,  II,  152 

Frick  t'.  Lewis,  I,  633 

Friendschaft,  The 

(3  Wheat.),  II,  566,  815 

(4  Wheat.),  11,548,563 

Friendship,  The,  II,  635 

Friery  Case,  I,  530 

Fritz  Schultz,  Jr.,  Co.,  v.  Raimes 

&  Co.,  II,  218 

Frothingham  v.  Shaw,  I,  366 

Fudera,  Ex  parte,  I,  591,  603 

Fur  Seal  Arbitration    (United 

States  V.  Great  Britain), 

I,  109,  116,  253,  256,  260,  261, 

407,  408,  418,  419,  420,  421, 

II,  121,  122,  136 

Galen,  The,  II,  459,  678 

Gallego,  Messa  &  Co.  v.  United 

States,  I,  528 

Garcia  t-.  Lee,  I,  271,  272,  II,  58 

Garrison's  Case,  I,  497,  508 

Gates  V.  Goodloe,  II,  563 

Gazzola  v.  Commanding  Officer, 

II,  254 
Gee  Hop,  In  re,  I,  628,  649,  697 

Gelbtrunk  Case,  I,  523,  539 

Gelston  v.  Hoyt,       I,  63,  271,  II,  771 
General  Hamilton,  The,  II,  682 

Geneva  Arbitration,  I,  79,  253, 

II,  120,  121,  156 
Genoese  Case,  Virgilio  del  I,  553 
Gentini  Case,  I,  192 

Geofroy  v.  Riggs,  I,  354,  615, 

II,  12,  15,  16,  60,  71 
George,  The,  II,  801 

Georgia,  The,  II,  550 

Gerasimo,  The,  II,  557 

Germanic,  The,  I,  396 

Gertrude,  The,  II,  610,  613 

Ghio,  In  re,  I,  814,  817 

Giacomo,  In  re,  I,  590 

Gibbs,  R.  W.,  Case,  I,  555,  556 

Gilbert  v.  David,  II,  560 

Giles  Case,  I,  527 

Gilroy,  Ex  parte,  I,  655 

Giovanna,  In  re,  I,  614 

Glaser,  In  re,  I,  599,  600 

Glass  V.  The  Sloop  Betsey,       II,  737, 
774,  797,  798 
Glenn  v.  United  States,  I,  228 

Glenn's  Case,  I,  498 

Gloire,  La,  II,  529 

Gloria  De  Larrinaga,  The,  1, 307,  470 


Glucksman  v.  Henkel,  I,  590,  597 

Goetze  v.  United  States,  II,  67 

Goldstein,  In  re,  I,  630 

Gonzales  v.  Williams,  I,  618 

Good  Return,  The,  I,  684 

Goodrich  and  De  Forest  v. 

Gordon,  II,  509,  510 

Gosch  Case,  I,  481 

Go  wen  and  Copeland  Case,        I,  173 
Graber,  Ex  parte,  II,  230 

Gran  Para,  The,  II,  774,  775 

Grapeshot,  The,  II,  364,  797 

Gray  Case,  I,  277 

Gray,  Adm'r.  v.  United  States, 

I,  508,  II,  193,  808 
Gray  Jacket,  The,  II,  562,  815 

Green  Case,  I,  509 

Griffin,  Ex  parte,         1,670,671,676 
Grin  v.  Shine,  I,  589,  594,  597, 

598,  599 
Grinnan  v.  Edwards,  II,  216 

Griswold  v.  Waddington,  II,  212 

Grotius,  The,  II,  492,  814 

Guastini  Case,  I,  539,  544 

Guerrieri  Case,  I,  539 

Guido,  The,  II,  548 

Haas,  In  re,  I,  629 

Hakan,  The,  II,  631,  632 

Halifax  Commission,  Award,     I,  258, 

II,  153 
Halladjian,  In  re,  I,  628 

Hallet  and  Bowne  v.  Jenks,       I,  399 
Halpern  v.  Commanding  Officer, 

II,  550 
Hamborn,  The,  II,  254 

Hamburg-American  Steam 
Packet  Co.  v.  United 
States,  II,  749 

Hamilton,  The,  I,  425 

Hamilton  v.  DilUn,  II,  208 

V.    Kentucky     Distilleries 
Company,  II,  820 

Handly's  Lessee  v.  Anthony, 

I,  192,  246,  248 
Hanger  v.  Abbott,  II,  212,  216, 

218,  220 
Hanna  Case,  I,  539 

Hannay  v.  Eve,  II,  547 

Harcourt  v.  Gaillard,  I,  196,  200 

Hardman  Case,  I,  528,  II,  375 

Hargous  Case,  I,  483,  485,  II,  67 

Harmon  v.  United  States,  I,  630 

Harmony,  The,  II,  557 

Hart,  The,  II,  556,  607,  614,  680 


XXXV 


TABLE  OF  CASES 


[References  are  to  pages] 


Hart  V.  Gumpach,  I,  425 

V.  United  States,  11,209 

Hassard    v.    United    States    of 

Mexico,  I,  446 

Hatch  V.  Baez,  II,  848 

Hauenstein  v.  Lynham,      I,  354,  358, 
II,  14,  15,  55 
Haver  v.  Yaker,  II,  47,  50,  58 

Hawley  v.  Maiden,  I,  363 

Hayes  v.  United  States,  I,  240 

Haymond  v.  Camden,  II,  216 

Hays  V.  Pacific  Mail  Steamship 

Company,  I,  362 

Headman  v.  Rose,  I,  645 

Head  Money  Cases,  II,  59 

Heathfield  v.  Chilton,  I,  750 

Heim  v.  McCaU,  I,  357,  359 

Helena,  The,  1,411,11,797 

Hellman  Case,  I,  481 

Henderson   v.    Mayor  of   New 

York,  I,  97 

V.  Poindexter's  Lessee,        I,  196 

Hendricks  v.  Gonzales,  II,  772 

Henrich,  In  re,  I,  595 

Henriquez  Case  (J.  M.),  I,  529 

(J.  N.),  1,539,541 

Heny  Case,  I,  455 

Herald,  The,  II,  672 

Herman,  The,  II,  557 

Hermon,  The,  I,  555 

Hermosa,  The,  I,  400,  401 

Hernandez  v.  Anry,  II,  799 

Herrera  v.  United  States,  I,  528, 

II,  207,  307 

Herres,  In  re,  I,  597 

Hewitt  V.  Speyer  (248  Fed.),     I,  393 

(250  Fed.),  I,  393 

Hiawatha,  The 

(Blatchf.  Prize  Cases),  II,  679 

(2  Black),  II,  672 

Hijo  V.  United  States,  II,  59 

Hipsang,  The,  II,  452 

Hoare  v.  Allen,  II,  222,  224 

Hoffnung,  The,  II,  688 

Holbrook  v.  Henderson,  I,  746 

Holden  v.  Joy,  I,  19,  II,  12 

Holmberg's  Estate,  In  re,  I,  816 

Holmes  v.  Jennison,  II,  12,  27 

Homan  Case,  I,  485 

Homer     Ramsdell    Co.    v.    La 

Compagnie         Generale 

Trans-Atlantique,  I,  380 

Hong  Yen   Chang,  In   re, 

I,  628,  649 
Hoop,  The,  II,  216,  509 


Hooper,    Administrator        v. 

United  States,  II,  403,  507 
Hopkirk  v.  BeU,  II,  220 

Horn  V.  MitcheU,  I,  392,  435 

Howland,  et  al.  v.  Venezuela,  II,  67 
Hoyty.  Commissioners  of  Taxes,  I,  362 
Hudson  V.  Guestier 

(4Cranch),  1,116,419, 

II,  799 

(6  Cranch),  I,  116,  419 

Hudson's  Bay  Co.,  Case 

No.  37,  I,  555 

Hunter  Case,  I,  555 

Hutchinson  v.  Brock,  II,  220 

Hutflis,  Ex  parte,  II,  254 

Hylton's  Lessee  v.  Brown,  II,  50 

Idler  Case,  I,  556,  558 

lUinois    Central    Railroad    Co. 

V.  Illinois,  I,  268 

Imina,  The,  II,  602,  606 

Immanuel,  The,  II,  613 

Indian  Chief,  The,  II,  560 

Indiana  v.  Kentucky,  I,  192,  193 

Infelise's  Estate,  In  re,  I,  818 

IngUs  V.  Sailor's  Snug  Harbour, 

I,  612,  615,  621,  662 
Insurance  Co.  v.  Davis,  II,  212,  213 
Invincible,  L',  II,  737,  774,  799 

Ionian  Ships,  The,  I,  25 

Iowa  I'.  Illinois  (147  U.  S.),        I,  246 

(202  U.S.  ),  I,  246 

Isaacson  v.  Durant,  L  46 

Island  Belle,  The,  II,  552 

Itata,  The,  I,  116,  421 

Iturria  Case,  I,  557 

Ixion,  The,  I,  395 

James  and  William,  The,      II,  59,  78 
James  Hamilton  Lewis,  The, 

I,  116,254,421 
Jane,  The,  II,  452 

Jan  Frederick,  The,  II,  564 

J.  &  P.  Baltz  Brewing  Co.  v. 
Kaiserbrauerei,  Beck  & 
Co.,  I,  370 

Jardel  Case,  I,  527 

Jarr  and  Hurst  Case,  I,  481 

Jarvis  Case,  I,  539 

Jassy,  The,  I,  443 

Jeannaud  Case,  I,  529 

Jeannotat  Case,  I,  523 

Jecker  v.  Montgomery 

(13  How.),      II,  797,  799,  801 
(18  How.),  II,  605 


XXXVl 


TABLE   OF  CASES 


[References  are  to  pages] 


Jefferis  V.  East  Omaha  Land 

Company,  I,  174 

Jemmy,  The,  II,  552 

Jennings  v.  Carson 

(4  Cranch),  II,  494 

(1  Pet.  Adm.),  II,  798 

Jennings,  Laughland  &  Co. 

Case,  I,  485,  509 

Jenny,  The,  II,  679 

Jesus,  The,  II,  603 

Jeune  Eugenie,  La,  I,  4 

Johannessen  v.  United  States, 

I,  649 

Johnson  Case,  I,  556 

Johnson  v.  Browne,     I,  583,  584,  589 

V.  Elkins,  I,  355 

V.  Jones,  II,  388 

V.  Mcintosh,  I,  164,  166 

Johnson  Lighterage  Co., 

The,  I,  443,  447 

Jonasson,  In  re,  I,  629 

Jones,  John  C,  Case,  I,  511 

Jones  V.  Le  Tombe,  I,  807 

V.  Meehan,  I,  19 

V.  United  States 

(1  Ct.  CI.),  I,  561 

(137  U.  S.),  I,  172,  271 

272,  389,  713 
Jonge  Klassina,  The,  II,  557 

Jonge  Margaretha,  The,  II,  584 

Jonge  Pieter,  II,  662 

Josefa  Segunda,  The,  II,  492 

Josephine,  The,  II,  679 

Jost  V.  Jost,  I,  355 

Judson  V.  Corcoran,  I,  483 

Juha,  The,  II,  203 

Juragua  Iron  Co.,  Ltd.  v.  United 

States,  I,  528,  II,  307 

J.  W.  Beam  v.  United  States 

and  Sioux  Indians,  II,  50 

Kahn  v.  Garvan,  II,  207 

Kaiser  Wilhelm  II,  The,  II,  220 

Kansas  v.  Colorado,  I,  314 

Kealoha  v.  Castle,  I,  202,  240 

Keane  v.  McDonough,  I,  271 

Keith  V.  Clark,  I,  15 

Kelley,  In  re  (25  Fed.),  I,  600, 

(26  Fed.),  I,  596,  597 

KeUy  V.  Griffin,  I,  533,  597 

V.  Owen,  I,  645 

Kennett  v.  Chambers,  I,  63 
Keokuk  &  Hamilton  Bridge  Co. 

V.  The  People  (145  111.),  I,  246 

(167  111.),  I,  246 


Keokuk    &   Hamilton     Bridge 

Co.  V.  Ilhnois,  I,  246 

Ker  t'.  Couden,  I,  174 

V.  Ilhnois,  I,  582 

Kern  Case,  I,  481 

Kershaw  v.  Kelsey,         II,  204,  205, 

209,  210 
Kidd  V.  Alabama,  I,  363 

Kim,  The,         II,  621,  622,  623,  624, 

625,  634 
Kingdom  of  Roumania  v.  Guar- 
anty Trust  Co. 

(244  Fed.)  I,  446 

(250  Fed.),  I,  446 

Kinter  v.  Hoch-Frequonz-Ma- 
schinen  Aktien-Gesell- 
chaft  fiir  Drahtlose 
Telegraphie,  II,  220 

Kirk  V.  Lynd,  II,  238 

Knight,  In  re,  I,  628 

Knight  Commander,  The, 

II   500,  587 
Knott  V.  Bottany  Mills,  I,  396 

Koenigin  Luise,  The,  I,  398 

Kohn  V.  Jacob  &  Josef  Kohn,  II,  235 
Krachanake  v.  Acme  Mfg.  Co., 

II,  219 
Kreuter,  In  re,  I,  629 

Kroj  anker.  In  re,  I,  599 

Kronprinsessan  Margareta,  The, 

II,  634 
Kuhnhold       v.       Netherlands- 
American    Steam    Nav. 
Co.,  II,  220 

Kumagai,  In  re,  I,  628 

Kummerow  Case,  _,  539,  II,  66 

Kunhardt  &  Co.,  Case,  I,  490,  491 
Kuntz  V.  Davidson  County,  I,  365 
Kyle,  Ex  parte,  I,  642 


La  Abra  Silver  Mining 

Co 

.  V. 

United  States, 

II, 

160, 

161 

Lady  Fumess,  The, 

822 

Lagueruene  Case, 

523 

Lalanne  and  Ledour  Case, 

511 

Lamachia,  Ex  parte. 

n,' 

254 

La  Mantia,  Ex  parte. 

I, 

591, 

600 

Lamar  v.  Browne, 

11, 

375, 

802 

t'.  Micou, 

11, 

211 

Lampitoe,  In  re; 

628 

Langtr3%  In  re, 

630 

Lanham  v.  Lanham, 

425 

La  Page,  Ex  parte. 

603 

Lapina  v.  Wilhams, 

] 

I,  95 

Larrucea,  Ex  parte, 

11, 

254, 

255 

xxxvu 


TABLE   OF  CASES 


[References  are  to  pages] 


Lasarte  Case, 

I,  483 

La  Torre,  In  re, 

1,819 

Lat timer  v.  Poteet, 

11,21 

Laurent  Case, 

1,483 

Laurie  Case, 

I,  539 

Lavigne  Case, 

1,620 

Lawrence  Case, 

I,  583 

Lazare  Case,  II,  152,  154 

Lehto  V.  Scott,  II,  255 

Leichardt  Case,  I,  510,  511 

Lem  Moon  Sing  v.  United 

States,  I,  95,  II,  59 

Leon,  In  re,  II,  256 

Leonora,  The,    II,  487,  648,  665,  810 
Le  Roy  v.  Crowninshield,  I,  387 

Lespes  Case,  I,  557 

Leucade,  The,  II,  497,  499 

Lewis  Case,  I,  511 

Lilla,  The,  II,  787,  798 

Lincoln,  In  re,  I,  599,  602 

Little  V.  Barreme,  II,  802 

Livingston  v.  Maryland  In- 
surance Co.,  II,  558 
Lizardi  Case,  I,  644 
Lobrasciano's  Estate,  In  re,  I,  814 
Locke  V.  United  States,  II,  493 
Lola,  The,  II,  524 
London  Packet,  The,  II,  565 
Long  V.  The  Tampico,  I,  444,  447 
Look  Tin  Sing,  In  re,  I,  614 
Lorenzo,  The,  II,  632 
Louis,  Le,  407,  408,  420 
Louisiana,  The,  II,  625 
Louisiana  v.  Mississippi,  I,  192, 
245,  246,  252,  269,  277 
V.  Texas,  I,  380 
Low  Wah  Suey  v.  Backus,      I,  100, 

645 
Lucy,  The,  II,  631 

Lucy  H.,  The,  II,  712,  769 

Ludlam  v.  Ludlam,  I,  617 

Luigi,  The,  I,  443 

Luis  Oteiza  y  Cortes,  In  re,      I,  599, 
601,  604 
Luke  V.  Calhoun  County,  I,  388 

Luria  v.  United  States,       I,  650,  672 
Lusitania,  The,  II,  478,  479,  485 

Luther  v.  Borden,  I,  63 

Lutzow,  The,  II,  563 

Lynch  v.  Clarke,  I,  613 

Lynchehoun  Case,      I,  573,  574,  577 
Lynden  v.  Danville,  I,  618 


Maal  Case, 
McBaine  v.  Johnson, 


I,  103,  517 
1,246 


McCall    V.    Marine    Insurance 

Co.,  II,  650 

Macartney  v.  Garbutt,  I,  757 

McCready  Case,  I,  684 

McCready  v.  Virginia,  I,  252,  358 
McCreery's    Lessee    v.    Somer- 

ville,  I,  355 

McDonald  v.  State,  I,  388 

Macdonnell,  In  re,  I,  596,  600 

McGovern    v.    Philadelphia    & 

Reading  Ry.  Co.,  I,  359 

McGrady  Case,  I,  539 

Mcllvaine  v.  Coxe's  Lessee, 

I,  196,  621 
McKee  v.  United  States,       II,  203, 

205 
Mackenzie  v.  Hare,  I,  643 

McKeown  v.  Brown,  I,  366 

Mclvinney  v.  United  States,       I,  604 
MacLeod  v.  United  States,         I,  13, 
544,  II,  362,  363,  364,  365 
McManus  Case,  II,  259 

McNamara  v.  Henkel,  I,  605 

McPhun,  In  re,  I,  599 

McVeigh  v.  United  States,  II,  221 
Magellan  Pirates,  The,  I,  411,  417 
Mager  v.  Grima,  I,  352,  366 

Magnet,  The,  II,  270 

Mahler  v.  Transportation  Com- 
pany, I,  260,  270 
Mahrousseh,  The,  II,  195 
Maiorano  v.  Baltimore  &  Ohio 

R.  R.  Co.,  I,  359 

Maipo,  The  (252  Fed.),  I,  443, 

(259  Fed.),  I,  443,  445 

Maisonnaire  v.  Keating,         II,  509, 

584 
Maley  v.  Shattuck,  II,  452 

Mallari,  In  re,  I,  628 

Manasse  &  Co.'s  Case,  I,  557 

Manchester  v.  Massachusetts,  I,  252, 
419,  420 
Manchuria,  The,  II,  548 

Manouba,  The,  II,  643 

Maracaibo,  The,  II,  632 

Margaret,  The,  II,  634 

Maria,  The,  II,  452,  454,  458,  538 
Maria  Dolores,  The,  II,  564 

Marianna  Flora,  The,  I,  407, 

II,  775 
Marie  Glaeser,  The,  II,  548,  549 

Marquis  de  Somerueles,  The, 

II,  527 
Marryatt  v.  Wilson,  II,  67 

Marsicana  v.  Felice  Ambrose,    I,  818 


XXXVUl 


TABLE  OF  CASES 


[References  are  to  pages] 


Martinez  Case,  I,  581 

Martinez  v.  Asociaci6n  de  Se- 

noras,  I,  625 

Martini  Case,  I,  550,  552,  553 

Mary  and  Susan,  The,  II,  391, 

392,  493,  560 
Maryland  v.  West  Virginia,  I,  192 
Mason  v.  Blaireau,  I,  825 

V.  Intercolonial  Ry.,    I,  446,  447 
Masonic,  The,  I,  395 

Massardo,    Carbone     &     Co.'s 

Case,  I,  485 

Mather  v.  Cunningham,  I,  428 

Mathison's  Case,  I,  620 

Matthews  v.  McStea,  II,  212 

Maxan  Heirs,  I,  644 

May,  R.  H.  v.  Guatemala,        I,  548, 

550 
Medea,  The,  I,  684 

Medina  Case,  I,  508,  652 

Meier  v.  Lee,  I,  354 

Melomane,  The,  II,  390 

Memphis,  The,  II,  269,  682 

Mena  Case,  II,  66 

Mentor,  The,  II,  854 

Mercer  County  v.  Hackett,        I,  560 
Merrimack,  The,  II,  564 

Messicano,  The,  I,  444 

Metropolitan    Life     Insurance 
Company    v.    New    Or- 
leans, I,  363 
Metzger  Case,            I,  361,  499,  550, 

II,  153 
Metzger,  Matter  of,  I,  568,  570 

Meunier,  Re,  I,  573,  574 

Michel  Case,  I,  529 

Mighell  V.  Sultan  of  Johore,      I,  429, 

431,  446 
Miliani  Case,  I,  621 

MiUigan,  Ex  parte,  II,  388 

Mineau,  In  re,  I,  597 

Minerva,  The,  II,  550 

Minneapolis  v.  Reum,  I,  633 

Minnesota  v.  Wisconsin,  I,  245 

Minnesota  Canal  &  Power  Co.  v. 

Pratt,  I,  315 

Minor  v.  Happersett,  I,  630 

Minotto  V.  Bradley,  II,  228 

Miramichi,  The,  I,  547,  565 

Missouri  v.  Holland,  II,  14,  19 

V.  Nebraska,  I,  247 

Mitchel   t'.    United    States,      I,  236, 

239 
Mitchell,  In  re,  I,  596 

Mitchell  V.  United  States,        H,  203 


Mohan  Singh,  In  re,  I,  628 

Montault  v.  United  States,       I,  201, 

11,50 
Montgomery  v.  United  States, 

II,  205,  210,  213 
Montijo,  The,  I,  539,  542 

More  V.  Steinbach,      I,  200,  201,  202 
Morgan   Steamship    Company 
V.  Louisiana     Board    of 
Health,  I,  380 

Morrison  Case,  I,  484 

Mortensen  v.  Peters,  I,  262,  389 

Mortimer  v.  New  York  Ele- 
vated R.  R.  Co.,  I,  203 
Morton  Claim,  Maria  A.,  I,  620 
Moses,  In  re,  I,  633 
Mozumbar,  In  re,  I,  628 
Mudarri,  In  re,  I,  628 
Muir,  In  re,  I,  443 
Muir  V.  Chatfield,  I,  445 
Mukden,  The,  II,  557 
Mimns  V.  Dupont,  I,  600 
Munro  v.  Merchant,  I,  613 
Murray  v.  Schooner  Charming 

Betsy,  I,  678,  II,  551, 

558,  704 
Muscat  Dhows  Case,  II,  71 

Mutual   Assiu-ance   Society   v. 

Watts's  Ex'r.,  I,  236 

Najour,  In  re,  I,  628 

Nancy,  The  (Bee),  II,  774 

(27  Ct.  CI.),  I,  5,  II,  459 

Nannanga,  In  re,  I,  629 

Nash  V.  Lambert,  II,  223 

Nassau,  The,  11,818 

Naturahzation     of     Aliens     in 

Service  of  Army  or  Nav'y 

of  United  States,  In  re, 

1,672 
Naturahzation   of   Subjects   of 

Germany,  In  re,  I,  629 

Nebraska  v.  Iowa,  I,  246,  247 

Neck,  The,  I,  398 

Neely  v.  Henkel,  I,  592 

Neilson  v.  Rhine  Shipping  Com- 
pany, I,  399 
Neptunus,  The,                         II,  673 
Nereide,  The,                 1,13,11,169, 
389,  390,  402, 403, 433. 
455,  456,  459,  461,  514 
Nereyda,  La,                              II,  774 
Neustra  Senora  de  la  Caridad, 

The,  1, 417 

Neutralitet,  The,  II,  632 


XXXIX 


TABLE  OF  CASES 


[References  are  to  pages] 


Newbattle,  The,  I,  439 

Newcomb  v.  Newcomb,  I,  670 

Newfoundland,  The,  II,  679,  815 

Newman,  In  re,  I,  592,  597 

New  Orleans  v.  Abbagnato,         I,  520 

V.  Steamship  Co.  II,  363, 

369,  378 

V.  Stempel,  I,  363 

V.  United  States,  1,203 

New  York,  The,  I,  399,  400 

New  York  Central  Railroad   v. 

Miller,  I,  362 

New   York    Life    Ins    Co.   v. 

Statham,  II,  211 

Nicola,  In  re,  I,  630,  645 

Ninfa,  La,  II,  157 

Nishimura     Ekiu     v.     United 

States,  1, 94 

Nitchencoff's  Case,  I,  430 

Noordam  (No.  2),  The,  II,  665 

North     and     South     American 
Construction     Company 
Case,  I,  552 

North  Atlantic  Coast  Fisheries 

Arbitration,  I,  9,  108,  255, 

256, 257,  262,  264,  265,  266, 
275,  II,  2,  34,  51,  66,  67, 
68,  123,  124,  133,  154 
Northeastern     Boundary     Dis- 
pute, I,  242,  243, 
II,  99,  116,  117,  118,  158 
North  German  Lloyd  S.  S.  Co. 

V.  Hedden,  II,  75 

Norton  Case,  I,  483 

Nuestra  Senora  de  Regla 

(17  Wall.),  I,  399,  II,  679 

(108  U.  S.),  II,  818 

Nueva  Anna  and  Liebre,  The, 

I,  63,  77,  II,  798 

Oakes  v.  United  States 

(30  Ct.  CI.),  II,  818 

(174  U.  S.),      II,  238,  509,  818 
Oberlander      and      Messenger 

Case,  I,  505 

Ocean,  The,  II,  566 

Ochoa  V.  Hernandez,  II,  364,  368 

Odessa,  The,  II,  565 

O'Dwyer  Case,  I,  558 

Oetjen  v.  Central  Leather  Co., 

I,  63,  272,  393 
Oldhamia,  The,  II,  453,  599 

OldtowTi  V.  Bangor,  I,  617 

Olinde  Rodriguez,  The,     II,  650,  656 
'^liva  Case,  I,  103,  551 


xl 


Ohvera  v.  Union  Insurance  Co., 

II,  683 
Olsen  V.  Smith,  II,  78 

Omnibus,  The,  II,  552 

OpheUa,  The,  II,  541,  542 

Opinion  of  Justices 

(7  Mass.),  I,  365 

(8  N.  H.),  I,  365 

O'Reilly  de  Camara  v.  Brooke,  I,  236 
Orel,  The,  II,  541 

Orinoco    Steamship    Company 
Case 
(Ralston's  Report),        I,  553, 
II,  123,  159 
(Scott,  Hague  Ct.  Rep.), 

I,  .552,  II,  30,  123,  134, 
154,  155,  159,  160,  168 
Omelas  v.  Ruiz,  I,  573,  574,  577, 

601,  604 
Orozembo,  The,  II,  635,  638 

Orpen,  In  re,  I,  586,  587 

Orr  V.  Hodgson,  II,  15 

Ortega  v.  Lara,  I,  202,  203 

Ortiz,  Ex  parte,  II,  50 

Ouachita  Cotton,  The,       II,  205,  688 
Ozama  Bridge    Claim,  v.  The 

Dominican  RepubUc        I,  550 

Packet  De  Bilboa,  The,  II,  564 

Padr6n  Case,  I,  539,  II,  66 

Pagano  v.  Cerri,  I,  814,  817,  818 

Pampa,  The,  I,  439 

Panama,  The,  II,  403,  445,  517 

Panama  Railroad  Co.  v.  Bosse, 

I,  202,  236 
Panariellos,  The,  II,  203,  204 

Papayanni    v.    Russian    Steam 

Navigation  Co.,  I,  386, 

451,  457 
Paquet  Case,  I,  103 

Paquete  Habana,  The 

(175  U.  S.),  I,  6,  13, 

II,  524,  527,  801,  803 

(189  U.  S.),  II,  802 

Parchim,  The,  II,  565 

Parkinson  v.  Potter,  I,  750 

Parlement  Beige,  The 

(L.  R.  5  P.  D.),      I,  443,  444, 
445,446 

(4  P.  D.),  I,  436 

Parrott  Case,  I,  508,  555 

Parrott  and  Wilson  Case,  I,  483 

Passenger  Cases,  The,  I,  95,  97 

Patsone  v.  Peimsylvania,  I,  357, 

358, 359 


TABLE  OF  CASES 


[References  are  to  pages] 


Patterson  v.  Bark  Eudora,       I,  395, 

822 
Pearcy  v.  Stranahan,  I,  272,  389 

Pearl  The 

'  (19  Fed.  Cas.),      II,  607,  614, 
615 

(5  WaU.),  II,  607 

Pearson  v.  Parson,  II,  749 

Pedro,  The,  II,  195,  517,  518, 

548,  553,  815 
Peggy,  The,  I,  510 

PeUcan,  The,  I,  63,  272 

Pelletier  Case,     II,  152,  154,  159,  161 
People  V.  Compagnie  Generale 

Transatlantique,  I,  97 

r.  Dennison,  I,  446 

V.  McLeod 

(1  Hill,  N.  Y.),  I,  388 

(25  Wend.),  I,  388,  434 

(26  Wend.),  I,  434 

Perez  Case,  I,  481 

Perkins  v.  Rogers,  II,  216 

Pesaro,  The,  I,  443 

Peterhoff,  The 

(Blatchf.  Prize  Cases), 

II,  269 

(5  WaU.),     II,  585,  611,  612, 
615,  634,  667,  679,  680 
Petersen  v.  Iowa,  I,  367 

Peterson,  In  re  Estate  of,  I,  367 

Petitt  V.  Walshe,  I,  594,  596,  599 

Pflaum  Case,  I,  499,  506 

Pfleiger,  In  re,  I,  629 

Phillips  V.  Moore,  I,  355 

Phoenix,  The  (5  Ch.  Rob.),      II,  563 

(Spinks,  Prize  Cas.),      II,  517 
Piaza,  In  re,  I,  600 

Pierce  Case,  I,  505 

Pierce  v.  Creecy,  I,  590 

Pillow  V.  Brown,  II,  223 

Pious  Fund  Case,       I,  9,  230,  II,  30, 
122,  133,  154,  155,  157 
Pitt,  The,  II,  170 

Pizarro,  The  (19  Fed.  Cas.),       I,  443 

(2  Wheat.),  II,  453,  514, 

813,815 
Piatt,  Ex  parte,  II,  255 

Plettenberg,    Holthaus   &    Co. 

V.  1.  J.  Kalmon  &  Co., 

II,  216,  220 
Poggioh  Case,  I,  514,  621 

Pollock,  In  re,  I,  629 

Polzeath,  The,  II,  550,  567 

Ponce     t;.      Roman     Catholic 

Church,  I,  236,  237 


Pond  Case,  I,  557 

Poole  V.  Fleeger,  I,  272 

Porter  v.  Freudenberg,  II,  216,  217, 
219,  221,  222,  .368 
Posselt  V.  D'Espard,  II,  218 

Pouren  Case,  I,  573,  601,  607 

Powell  V.  United  States,  I,  597,  598 
Pradel's  Case,  I,  497,  506 

Prats  Case,  I,  468,  541 

Prevost  V.  Greneaux,  II,  50 

Price  Case  (No  6),  II,  155 

Prigg  V.  Penna,  I,  473 

Prize  Cases,  The,  I,  79, 

II,  198,  200,  650,  655,  683 
Protector,  The,  II,  201,  823 

Proton,  The,  II,  549,  807 

Puget's      Sound      Agricultural 

Company's  Case,  II,  66 

Pullman's    Palace   Car   Co.    v. 

Pennsjdvania,  I,  362 

Putnam  v.  Johnson,  II,  560 


Queen  v.  Chesapeake, 


II,  737 


Rabasse,  Succession  of,  I,  818 

Ragusz  V.  Les  Commissionaires 
du  Havre  de  Montreal, 

11,217 
Rainey  v.  United  States,  II,  59 

Rallos,  In  re,  I,  628 

Rapid,  The,  II,  203,  204,  205 

Rebecca,  Case  of  the,         I,  399,  492 
Regina  v.  Anderson,  I,  424 

V.  Cunningham,  I,  260 

V.  Keyn,  I,  241,  272,  388, 

389,  405,  420 
Reichenburg,  In  re,  I,  634 

Republic    of    Bolivia    Explora- 
tion Syndicate,  In  re,      I,  750 
Republic    of     El    Salvador    v. 

Republic  of  Nicaragua,      II,  5 
RepubUc  of  Peru  v.  Dreyfus,       I,  63, 

272 
V.   Peruvian  Guano  Com- 
pany, I,  63,  272 
Republique         Fran^aise        v. 

Schultz,  II,  81 

Respublica  v.  De  Longchamps, 

I,  739,  740 
Revesno  Case,  I,  539,  541 

Rhode  Island  v.  Massachusetts 

(4  How.),  I,  192 

(12  Pet.),  II,  113 

Rice  V.  Ames,  I,  594,  597,  598 

Rindjani.  The,  I,  398 


xli 


TABLE  OF  CASES 


[References  are  to  pages] 


Ringende  Jacob,  The,       II,  631,  632 
Rio   Arriba   Land   and   Cattle 
Company      v.      United 
States,  I,  236 

Rionda,  In  re,  I,  644 

Rita,  The,  II,  397 

Rixner,  Succession  of,  I,  366 

Robert's  Case,  I,  529 

Robinson  v.  Continental  Insur- 
ance Co.,  II,  221 
V.  Minor,  I,  272 
Rocca  V.  Thompson          I,  812,  814, 
815,  II,  71 
Rodriguez,  In  re,  I,  628 
Romano,  Ex  parte,                    II,  254 
Romeo,  The,                               II,  815 
Ronchi,  Ex  parte,  I,  603 
Ropes  V.  Clinch,  II,  59 
Rose  V.  Himely,     I,  63,  116,  387,  419 
V.  Mexico,                           II,  259 
Roseric,  The,                        I,  443,  444 
Rosina,  La,                                  II,  529 
Ross,  In  re,         I,  449,  454,  462,  480, 
II,  70,  71,  80 
Roth  V.  Roth,                               I,  425 
Rothbart  v.  Herzfeld,                II,  220 
Rothersand,  The,                       II,  552 
Roumanian,  The,               II,  547,  570 
Rowe,  In  re,  I,  583 
Roy  V.  Owen,  I,  747 
Ruden  Case,                 I,  485,  498,  508 
Rudloff  Case,                        I,  551,  553 
Rudovitz  Case,                  I,  414,  573, 
574,  575,  576,  577 
Ruiz  Case,  I,  652 

Sadar  Bhagwab  Singh,  In  re,     I,  628 
St.  Croix,  The,  II,  603 

St.  Joze  Indiano,  The,  II,  564 

St.  Lawrence,  The,  II,  815 

St.  Louis  V.  Rutz,  I,  175,  249 

St.  Tudno,  The,  II,  5^0,  567 

Saito,  In  re,  I,  628 

Sally,  The,  II,  564 

Sally  (Hayes  Master),  The,        II,  63 
Sally  Magee,  The,  II,  563,  564 

Salomoni,  The,  I,  398 

Salvador   Commercial   Go's 

Case,  I,  489,  550 

Sambiaggio  Case,  I,  539,  540, 

II,  63,  66 
Samuel,  The,  II,  814 

Sandberg  i;.  McDonald,      I,  399,  425 
Sanderson  v.  Morgan,  II,  216 

San  Jose,  The,  II,  625 


San  Jos6  Indiano,  The      II,  562,  563 
Santa  Clara  Estates  Company 

Case,  I,  544 

Santa  Maria,  The,  II,  801 

Santiago  v.  Nogueras,  II,  363 

Santissima  Trinidad,  The 

(1  Brockenbrough),      II,  760, 
774 

(7  Wheat.),     I,  417,  436,  662, 
II,  718,  737,  738,  749, 
774,  800 
Santo  Domingo,  The,        II,  496,  819 
Sarah  Christina,  The,  II,  631 

Sapphire,  The,  I,  465 

Sasportas  v.  De  La  Motta,         I,  617 
Saurez,  Re,  I,  750 

Savarkar  Case,  I,  581 

Sawyer  v.  Maine  F.  &  Mar.  Ins. 

Co.,  II,  797 

Saxlehner  v.  Eisner  Mendelson 

Co.,  I.  370 

Schaffenius  v.  Goldberg,    II,  217,  346 
Scharrenberg   v.    Dollar    S.    S. 

Co.,  I,  431 

Schlippenbach,  In  re,  I,  586,  587 

Schneider,  In  re,  I,  634 

Scholefield  &  Taylor  v.  Eichel- 

berger,  II,  203,  209,  210 

Schooner  Adeline,  The,  II,  508, 

803,  812,  814 

Schooner  Endeavor,  The,  II,  192 

Schooner  Exchange  v.  McFad- 

don,  I,  322,  375,  386,  392, 

428,  431,  432,  437, 
438,  443,  445,  447,  II,  847 
Schooner      Jane      v.      United 

States,  II,  403 

Schooner  Mowe,  The,  II,  221 

Schooner  Nancy,  The,  I,  5 

Schorer,  Ex  parte  (195  Fed.),    I,  596 

(197  Fed.),  I,  602 

Schreck  Case,  I,  481 

Schultz  Case,  I,  539 

Schultze  V.  Schultze,       I,  355,  II,  67 
Science,  The,  II,  612 

Scott  Case,  I,  474 

Sea  Nymph,  The,  II,  459 

Sea  Witch,  The,  II,  679 

Sechs  Geschwistern,  The,  II,  552 

Secretary  of  State  v.  Charles- 
worth,  PiUing  &  Co.,       I,  429 
Secretary  of  State  in  Council 
of    India    v.    Kamachee 
Boye  Sahaba,  II,  802 

Selwyn's  Case,  I,  551,  553 


xlii 


TABLE  OF  CASES 


[References  are  to  pages] 


Semmes  v.  Hartford  Insurance 

Co.,  II,  211,  220 

Serralles'  Succession  v.  Esbri,  I,  209 
Servas'  Estate,  In  re,  I,  816,  817 

Shanks  v.  Dupont,  I,  622,  662 

Shenandoah,  The,  I,  414 

Ship  Amazon  v.  United  States, 

II,  452 
Ship  Ann  Green  and  Cargo, 

The,  II,  564 

Ship  Resolution,  The,  I,  511, 

II,  506,  507 
Ship  Rose  v.  United  States,  The, 

I,  12,  II,  452 
Shively  v.  Bowlby,  I,  260 

Short  Staple  v.  United  States,  I,  399 
Shreck  v.  Mexico,  No.  768,  I,  620 
Silva  Case,  I,  539 

Simpson  v.  State,  I,  422 

Sir  William  Peel,  The 

(Moore  Arb.),  I,  483 

(5  Wall.),  II,  787,  815 

Slater  v.  Mason,  I,  355 

Slocum  Case,  I,  483 

Sloop  Ralph,  The,  II,  630 

Smith  Case  (Charles  B.),  I,  492, 

509 
Smith  V.  Government  of  Canal 

Zone,  I,  585 

V.  United  States,  I,  236 

Smith's  Case  (1862),  I,  413 

Society  for  the  Propagation 
of  the  Gospel  v.  New 
Haven,  I,  355,  II,  15,  93 

Soglasie,  The,  II,  552 

Solveig,  The,  II,  550 

Soulard  v.  United  States,  I,  237 

South  African  Republic  v.  Com- 

pagnie  Franco-Beige,  I,  446 
Southern  Pacific  Co.  v.  Ken- 
tucky, I,  363 
Speidel  v.  N.  Barstow  Co.,  II,  220 
Spiegelberg  v.  Garvan,  II,  235 
Spratt  V.  Spratt,  I,  627,  649 
Springbok,  The 

(Brit,  and  Am.  Com.), 

II,  603,  604,  605 

(Blatchf.  Prize  Cas.),     II,  612 

(5  Wall.),  II,  612,  613, 

614,  615,  616,  680 

Sprung  V.  Morton,  I,  630,  645 

Standish  Case,  I,  529 

Star,  The,  II,  507,  818 

State  V.  Adams,  I,  616 

V.  Ah  Chew,  I,  628 

xliii 


State  V.  Boyd, 

1,642 

V.  Fenn, 

1,425 

V.  Hall, 

1,422 

V.  Neibekier, 

1,388 

V.  Shattuck, 

1,425 

Steamship    Appam,    The    (see 

also  Appam,  The),  I,  13, 

II,  732,  733,  734,  735.  736, 

737,  775,  800,  819 

Steer,  In  re,  II,  568 

Stephen  Hart,  The,  II,  269,  607, 

608,  609,  680 

Stephens  v.  Brown,  II,  216 

Sternaman,  Ex  parte,  I,  598 

Sternaman  v.  Peck,  I,  591 

Stetson  V.  United  States,    I,  260,  405 

Stevenson  Case,         I,  481,  620,  621, 

644 
Stewart  Case,  I,  539 

Stigstad,  The,  II,  665 

Stixrud's  Estate,  In  re,  I,  367 

Stratheam  S.  S.  Co.  v.  Dillon,  I,  399 
Strother  v.  Lucas,  I,  202,  236,  238 
Strousberg  v.  Republic  of  Costa 

Rica,  I,  446 

Stumpf  V.  A.  Schreiber  Brewing 

Co.,  II,  213,  216,  218,  220 

Stupp,  In  re  (11  Blatchf.),  I,  592,  606 

(12  Blatchf.),  I,  602,  604,  606 
Sturm  V.  Flemming,  II,  216 

Success,  The,  II,  549 

Sullivan  v.  Kidd,  II,  64,  71 

Summertime  v.  Local  Board,  II,  254 
Susan  and  Mary,  The,  II,  564 

Sutton  V.  Sutton,  II,  93 

Swayne  &  Hoyt  v.  Everett,  I,  460 
Sweden  v.  Norway,  I,  252 

Swift  V.  Phila.  &  R.  R.  Co.,       I,  386 

Tagliaferro  Case,  I,  508 

Talbot  V.  Janson,  II,  389,  774,  775 

Tampa,  The,  I,  443 

Tang  Tun  v.  Edsell,  I,  100 

Tarquin,  The,  I,  213 

Tartaglio,  In  re,  1,819 

Taylor,  In  re,  I,  591 

Taylor  v.  Albion  Lumber  Co.,  II,  220 

V.  Barclay,  I,  63,  272 

V.  Best,  I,  753 

V.  Morton,  II,  59 

Techt  V.  Hughes,  I,  644,  II,  94 

Tellefscn  v.  Fee,  I,  398 

Tercsita,  The,  II,  679,  SOI 

Terlinden  v.  Ames,  I,  568,  604,  605, 

II,  58,  86 


TABLE  OP  CASES 


[References  are  to  pages] 


Terry  and  Angus  Case,  I,  529      U 

Texas  v.  White,  I,  15 

Thingvalla     Line     v.     United 

States,  II,  74 

Thirty  Hogsheads  of  Sugar  v. 

Boyle,  II,  363,  563,  803 

Thomas  Gibbons,  The,     II,  391,  392 
Thompson,  The,  11,  801 

Thorington  v.  Smith,  I,  79 

Three  Friends,  The,  I,  63,  77,  81, 

82,  541,  II,  194,  783 
Thurn  and  Taxis,  Princess,  v. 

Moffitt,  II,  217 

Tiaco  V.  Forbes,  I,  100 

Tillet  Case,  I,  103,  104 

Tingley  v.  MuUer,  II,  213 

Tivnan,  Inre,  1,411,413 

Tobin  V.  \^'alkinshaw,  I,  624 

Toscano,  Ex  parte,  II,  745 

Trippler  Case,  I,  529 

Triquet  et  al.  v.  Bath,  I,  750 

Troop,  The,  I,  822 

Truax  v.  Raich,  I,  358 

Trumbull  Case,  I,  558 

Tucker  v.  Alexandroff,       I,  432,  436, 
441,  442,  447,  822,  823, 
II,  67,  71 
TurnbuU  Case,  I,  553 

Turner  v.  Williams,  I,  95,  100 

Twende  Brodre,  The,  II,  605 

Ubeda  v.  Zialcita,  II,  70 

Udny  V.  Udny,  II,  560 

Underbill  Case  (Venezuela),      I,  523 
(Mexico),  I,  555 

Underbill  v.  Hernandez,  I,  393 

Union  Refrigerator  Transit  Co. 

V.  Kentucky,  I,  362 

Union  Tank  Line  Co.  f .  Wright, 

1,362 
United  Shoe  Machinery  Co.  v. 
Duplessis  Shoe  Machin- 
ery Co.,  II,  59 
United  States,  The,                   II,  665 
United  States  v.  Aakervik,        I,  643 
V.  American  Sugar  Ref.  Co., 

I,  368,  II,  54 
V.  Ames,  II,  798 
V.  Arredondo,      I,  236,  239,  240, 

II,  47,  50,  63 
V.  Baker,  I,  413 
V.  Balsara,  I,  628 
V.  Bell,  II,  254 
V.  Benner,  I,  750 
V.  Bennett,                            1,362 


nited  States  v.  Bragg,  I,  634 

V.  H.  N.  Bull,  I,  393 

V.  A  Canoe,  II,  204 

V.  Cantini   (199  Fed.),       I,  634 

(212  Fed.),  I,  634 

V.  Chakraberty,  II,  723 

V.  Chaves,  I,  236 

V.  Clarke 

(8  Pet.),  I,  228,  236,  240 

(9  Pet.),  I,  239 

V.  Cohen,  I,  644 

V.  D'Auterive,  I,  201 

V.  Davis,  I,  422 

V.  Diekelman,  I,  476, 

II,  387,  449,  688 
V.  Eaton,  I,  788 

V.  Eighteen     Packages    of 

Dental  Instruments,         II,  29 
V.  Elder,  1,  240 

V.  Finley,  II,  254 

V.  Four   Packages   of   Cut 

Diamonds,  II,  29 

«;.  Fuld  Store  Company,      II,  19 
V.  Ginsberg,  I,  634 

V.  Gordon,  I,  617 

V.  Grand    Rapids    and    I. 

R.  Co.,  II,  50 

V.  Greene,  I,  590 

V.  Griminger,  I,  634 

V.  Grossmayer,  II,  213 

V.  Gue  Lim,  Mrs.  II,  59 

V.  Guillem   (2  How.),        II,  672 

(11  How.),  11,566,680 

V.  Guinet,  II,  711 

V.  Hamburg- American  Co., 

II,  190 
V,  Hand,  I,  740 

V.  Hayward,  I,  176 

V.  Heirs  of  Clarke,       I,  236,  239 
V.  Henry  C.  Homeyer,  The 

II,  204 
V.  Hertz,  11,704,707 

V.  Heyburn,  11,254 

V.  Holmes,  1,411,412 

V.  Howe,  I,  638,  672,  675 

V.  Jorgenson,  I,  634 

V.  Kamm,  I,  629 

V.  Kazinski,  Louis,     II,  704,  758 
V.  Kelly,  I,  823 

V.  Kjngslev,  I,  239 

V.  Kinkead,  II,  254 

V.  KUntock,  I,  411,  412,  413 

V.  La     Compagnie     Fran- 

gaise    des    Cables    Tele- 

graphiques,  1, 375 


xliv 


TABLE   OF  CASES 


[The  references  are  to  pages] 

United  States  v.  Lane,     II,  204,  205      United   States   v.    Texas    (143 


La  Vengeance,  II,  242 

Lee  Yen  Tai,  II,  59,  60 

Local  Exemption  Board, 

II,  255 


Lynde, 

McDonald, 

Meyer, 

Mills's  Heirs, 

Minges, 

Mitchell, 

Morena, 

Moreno, 

Nagler, 

Ness, 


I,  272,  II,  58 

II,  348 

1,629 

1,239 

1,823 

II,  254 

1,630 

1,236 

II,  299 

I,  623,  631 


1,546 

I,  739 

1,79 

1,63,77,271,411 

1,240 


Nord   Deutscher    Lloyd, 

1,432 
O'Keefe, 
Ortega, 

Pacific  Railroad, 
Palmer, 
Peralta, 
Percheman,  I,  236,  II.  58, 
71,  237,  238 
Peters  (5  Cranch),  II,  797 
(3  Dall.),  II,  799 

Pirates,  1, 411 

Power's  Heirs,  I,  202 

Prioleau,  1, 446 

Quigley,  II,  209 

Ram  Chandra,  II,  723 

Rauscher,        I,  392,  568,  582, 
583 
Ravara,  1, 807 

Repentigny,  I,  196,  241 

Reynes,  I,  201,  272, 

II,  50,  58 
Rice,  I,  175,  176,  II,  363 

Rio  Grande  Dam  &  Ir- 
rigation Co.  I,  316 
Rockefeller,  II,  18 
Rockteschell,  1, 634 
Rodgers  (144  Fed.),  I,  647 
(185  Fed.), 


(150  U.S.) 

Samples, 

Sander, 

Santa  Fe, 

Selkirk, 

Seuffert  Bros.  Co., 

Shanahan, 

Sheldon, 

Smith, 

Swelgin, 

Tauscher, 


1,647 

I,  268,  405,  424 

II,  18 


II,  723 
1,240 
11,18 
11,70 
1,634 

II,  204 

I,  410,  412 

I,  6.50 

II,  723 


U.     S.),     I,     272 

U.  S.)_, 
V.  Thierichens, 
V.  Thompson, 
V.  Trumbull  (48  Fed 


(48  Fed.  99), 
Uhl, 
Villato, 

Western     Union 
graph  Co., 
Williams, 
Winans, 
Wong  Ivim  Ark, 


(162 

1,242 
1,392 
II,  14,  18 
94) 

I,  791,  808 

783 

1,633 

1,626 

Tele- 

1,376 

1,645 

11,70 

I,  612,  613, 


614,  615,  616,  618 


V.  Wursterbarth, 
V.  Yorba, 
V.  Zucker, 
United    States    Cable 
Anglo-American 
graph  Co, 
University  v.  Finch, 

Upton  Case, 
Urtetiqui  v.  D'Arbel, 


1,650 
1,272 
I,  100 

Co.    V. 
Tele- 

1.260 

II,  212,  213, 

215 

1,527 

1,697 


Van  Bokkelen  Case,  I,  391,  497, 

499,  502,  II,  57,  67 

Van  Dissel  Case,  I,  539 

Van  Voorhis  v.  Brintnall,  I,  425 

Vavasseur  v.  Krupp,  I,  447,  448 

Venezuelan  Steam  Transporta- 
tion Company  Case,        I,  539 

Venus,  The  (8  Cranch),  II,  558, 

559,  560,  566 
(4  Ch.  Rob.), 

Vesseron  Case, 

Vilas  V.  Manila, 

Virginia,  The, 

Virginia  v.  Tennessee, 
V.  West  Virginia, 

Volant,  The, 

Volkmar  Case, 

Von  Hellfeld  v.  Russian  Govern- 
ment, I, 

Von  Thorovitch  v.  Franz  Joseph 
Beneficial  Association, 

I,  796,  801 

Vrow  Anna  Catherina,  The,     II,  563 

Vrow  Margaretho,  The,    II,  564,  565 

Vujic  V.  Youngstown  Sheet  and 

Tool  Co.,  I,  819 

Wadge,  In  re,  I.  600 

Wadsworth  v.  Boysen,  II,  59 


II,  528,  529 

I,  529,  530 

I,  202 

II,  551 

I,  192 

I,  207 

II,  612 

I,  527 


446 


xlv 


TABLE  OF  CASES 


[The  references  are  to  pages] 


Waldes  v.  Basch,  I,  63 

Walker's  Case,  I,  558 

Walker's   Executors   v.   United 

States,  II,  204,  210 

Walsh  Case,  I,  539 

Ward  V.  Smith,  II,  223 

Ware  v.  Hylton,  U,  5,  237,  242 

V.  Wisner,  I,  618 

Washington,  The,  I,  260 

Washington  v.  Oregon 

(211  U.  S.),  I,  246 

(214  U.  S.),  I,  246 

Wassilieff  Case,  I,  573 

Watts,  Watts  &  Co.  v.  Unione 

Austriaca  &c.,         II,  220,  222 
Webb,  Ex  parte,  II,  59 

Webster  Case,  I,  529 

Weil  Case,  (Benj.),  II,  160,  161 

(Lewis),  I,  529,  II,  259 

Weisz,  In  re,  I,  629 

Wells  V.  Williams,  II,  217 

West  Rand  Central  Gold  Min- 
ing Co.  V.  The  King,  I,  7, 
223,  231 
Wheelright  &  Depeyster,          II,  797 
Whiteside  v.  Norton,                   I,  247 
Whitney  v.  Robertson 
(124,  U.  S.), 
(21  Fed.), 
V.  United  States, 
Wiborg  V.  United  States, 


Wilbraham  v.  Ludlow 
Wilcox  V.  Henry, 

Wildberger,  In  re, 
Wildenhus's  Case, 
William,  The, 
Williams  v.  Armoy 

V.  Bruffy, 

V.  Paine, 

V.  Suffolk  Ins.  Co 

V.  Venezuela, 


II,  59,  74 

II,  74 

I,  240 

II,  722, 

782,  783 

II,  560 

I,  236, 
II,  216,  218,  237 

I,  671 

I,  393,  396,  821 

II,  604,  605 

II,  799 
I,  79,  242 

II,  212,  213 

I,  271,  272 

I,  192 


Williamson  v.  Osenton,  II,  560 

Wilson,  Ex  parte,  I,  581,  582 

Wilson  Case,  (Joseph  N.),  I,  510 

(Joseph  O.),  I,  527,  620 

Wilson  V.  Blanco,  I,  745 

V.  McNamee,  I,  406,  423 

V.  Marryat,  II,  557 

V.  United  States,  I,  561 

Winslow  Case,  I,  583 

Wipperman  Case,  I,  512 

Wong  Wai  v.  Williamson,  I,  380 

Wong  Wing  v.  United  States,     I,  100 

Woodruff  Case,  I,  552,  553 

Wright  V.  Henkel,       I,  570,  590,  596 

Wulff  V.  Manuel,  I,  642 

Wunderle  v.  Wunderle,  I,  355 

Wyman,  In  re,  I,  814,  II,  77 

Wyman  Case,  I,  539 


Yamashita,  In  re, 
Yordi,  Ex  parte, 
Yordi  V.  Nolte, 
Young,  In  re. 
Young  V.  Peck, 

V.  United  States, 


and 


I,  628,  649 
I,  598 
I,  598 
I,  628 
I,  647 

I,  479, 
II,  206,  375 

Johanna, 

II,  524 


Young  Jacob 

The, 

Young,  Smith  &  Co.  Case,   II,  155 
Yunghauss,  In  re  (210  Fed.),  I,  630 

(218  Fed.),  I,  630 


Zakonaite  v.  Wolf, 
Zambrano's  Case, 
Zamora,  The  ([1916]  P.) 
([1916]  2  A.  C), 
269,  270, 
Zaralla,  The, 
Zartarian  v.  Billings, 
Zee  Star,  The, 
Zentner,  Ex  parte. 
Zinc  Corporation,  Lim.  v 


I,  100 

I,  498 

,  11,805,807 

I,  9,  II,  264, 

549,  803,  807 

II,  799 

I,  646,  647 

II,  499 

I,  595,  598 

.  Hirsch, 

II,  211 


xlvi 


LIST  OF  ABBREVIATIONS 


Together  with  Descriptions  of  the  Principal  Collections  of  Docu- 
ments Cited  in  Abbreviated  Form 

This  list  does  not  embrace  titles  which  are  sufBciently  described  when  cited 
in  the  foot-notes.  It  is  not  a  bibliograph}'  of  the  several  works  to  which  refer- 
ence is  made  in  the  text  and  foot-notes.  Nor  does  it  purport  to  explain  the 
well  known  abbreviations  of  the  reports  of  American  and  British  cases. 


Am, 

Am.  Hist.  Rev. 

Am.  J. 

Am.  State  Pap.  For.  Rel. 


American  White  Book,  Euro- 
pean War. 


Am.  Law  Reg. 
Am.  Law  Rev. 

Am.  Pol.  Sc.  Rev. 

Alvarez. 

Annuaire. 

Arch.  Dip. 

Baker. 

Bluntschli. 


B  onfils-Fauchille. 


American. 

American  Historical  Review,  1895- 
American    Jom-nal    of    International    Law. 
New  York,  1907- 

American  State  Papers,  Class  I,  Foreign  Re- 
lations. Documents  Legislative  and  Execu- 
tive of  the  Congress  of  the  United  States, 
1789-1828.  6  foUo  vols.  Washington,  1832- 
1859. 

United  States,  Department  of  State:  Euro- 
pean War.  Diplomatic  Correspondence  with 
Belligerent  Governxnents  Relating  to  Neutral 
Rights  and  Duties,  and  Commerce.  4  White 
Books,  May  27,  1915-May  18,  1918. 
See  Univ.  Penn.  Law  Rev. 
American  Law  Review.  Boston,  1866-1882, 
St.  Louis,  1883- 

American  Political  Science  Review.  Balti- 
more, 1907- 

Alvarez,  Alejandro :  Le  droit  international 
americain.     Paris,  1910. 

Annuaire  de  VInstitut  de  Droit  International, 
1877- 

Archites   Diplomatiques.     Founded   in    1861. 
Three  series.     Paris,  1861-1913. 
Sir  Sherston  Baker:     First  Steps  in  Inter- 
national Law.     Boston,  1899. 
Johann  Kaspar  Bluntschli :  Le  Droit  Inter- 
national Codifie.    Translated  from  the  German 
into  French  by  C.  Lardy,  and  preceded  by  a 
biography   of  the   author  by  Alph.    Rivier. 
Fifth  edition.     Paris,  1895. 
Henry  Bonfils  :  Manuel  de  Droit  International 
Public.     Seventh  edition  by  Paul  Fauchille. 
Paris,  1914. 
xlvii 


LIST   OF  ABBREVIATIONS 


Borchanl,     Diplomatic    Pro- 
tection. 

Brit,  and  For.  St.  Pap. 

Calvo. 

Catalogue  of  Treaties. 

Cd.  or  Cmd. 
Charles'  Treaties. 


de  Clercq. 


Clunet,  Tables  Generates. 

Pitt  Cobbett,  Cases. 
Collezione  Celerifera. 


Cong.  Record. 
Crandall,  Treaties. 


"Cyc." 
Davis. 


Edwin  M.  Borchard :  The  Diplomatic  Pro- 
tection of  Citizens  Abroad  or  the  Law  of 
International  Claims.  New  York,  1915. 
British  and  Foreign  State  Papers.  Issued  by 
the  Foreign  Office  of  Great  Britain.  London. 
Charles  Calvo :  Le  Droit  International  theo- 
rique  et  pratique.  Fifth  edition.  6  vols. 
Paris,  1896. 

United  States,  Department  of  State :     Cat- 
alogue of  Treaties  (1814-1914).     Confidential 
document.     Washington,  1919. 
Great  Britain,  Parliament.     Papers  issued  by 
command. 

Treaties,  Conventions,  International  Acts, 
Protocols  and  Agreements  between  the  United 
States  of  America  and  other  powers :  Sup- 
plement, 1913,  to  Senate  Document  No.  357, 
Sixty-first  Congress,  Second  Session.  Com- 
piled by  Garfield  Charles.  Senate  Document 
No.  1063,  Sixty-second  Congress,  Third 
Session.  Washington,  1913. 
Recueil  des  Traites  de  la  France.  Published 
under  the  auspices  of  the  Ministry  of  Foreign 
Affairs.  Compiled  by  A.  J.  H.  de  Clercq  and 
Jules  de  Clercq.  1864-1907. 
Journal  du  Droit  International  Prive  et  de  la 
Jurisprridence  Coniparee.  Founded  in  1874, 
and  published  by  Edouard  Clunet,  and  from 
1915  (42d  year)  entitled  Journal  du  Droit 
International.     Paris. 

Tahle.f  Oevemles  du  Journal  du  Droit  Inter- 
natiorml  Prive.  Augmented  by  several  re- 
ports and  numerous  documents  concerning 
international  law,  1874-1904.  4  vols.  Paris, 
1905-1906. 

Pitt  Cobbett :  Cases  and  Opinions  on  In- 
ternational Law.  Third  edition,  2  vols. 
London, 1909-1913. 

Collezione  Celerifera  delle  Leggi,  Decreti, 
Istruzione  e  Circolari.  Editor :  Domenico 
Scacchi.  Rome,  1915- 
United  States  :  Congressional  Record. 
Samuel  B.  Crandall :  Treaties,  Their  Making 
and  Enforcement.  Second  edition.  Wash- 
ington, 1916. 

Cyclopedia  of  Law  and  Procedure.  Editor- 
in-Chief,  William  Mack.  40  vols.  New 
York,  1901-1912. 

George  B.  Davis  :  Elements  of  International 
Law.      Third     edition,     New     York,     1908. 

xlviii 


LIST  OF  ABBREVIATIONS 


Despagnet. 

Dana's  Wheaton. 
Dip.  Cor. 


Evans,  Int.  Law  Cases. 

Fenwick. 

Field. 

Fiore. 
Fiore,  Code. 

For.  Rel. 


Foulke. 

Garner,  Int.  Law  and  The 
World  War. 

Hall. 


Halleck. 


Harv.  Law  Rev. 
Heffter. 


Fourth  edition  edited  and  revised  by  Gordon 
E.  Sherman.     New  York,  1916. 
Frantz    Despagnet :     Cours   de   Droit    Inter- 
national Public.     Fourth  edition  revised  and 
augmented  by  Ch.  de  Boeck.     Paris,  1910. 
See  Wheaton. 

Diplomatic  Correspondence  of  the  United 
States,  1783-1789.  3  vols.  Washington, 
1837.     or. 

Diplomatic   Correspondence    of   the    United 
States,     published    by    the    Department  of 
State  for  the  years  1861-1868.     No  volume 
was  published  for  the  year  1869. 
Lawrence  B.  Evans  :     Leading  Cases  on  In- 
ternational Law.     Chicago,  1917. 
Charles  G.  Fenwick :     The  Neutrality  Laws 
of  the  United  States.     Washington,  1913. 
David  Dudley  Field  :     Outlines  of  an  Inter- 
national Code.     Second  edition.     New  York, 
1876. 

Pasquale  Fiore  :  Noureau  Droit  International 
Public.  Second  edition.  Translated  into 
French  by  Chas.  Antoine.  3  vols.  Paris, 
1885-1886. 

Pasquale  Fiore  :  International  Law  Codified 
and  Its  Legal  Sanction.  English  translation 
from  the  fifth  Italian  edition  with  an  intro- 
duction by  Edwin  M.  Borchard.  New  York, 
1918. 

United  States,  Department  of  State.  Papers 
Relating  to  the  Foreign  Relations  of  the  United 
States,  1870-  (The  volume  for  the  year  1913 
was  the  latest  one  published  during  1920.) 
Roland  R.  Foulke :  International  Law.  2 
vols.  Philadelphia,  1920. 
James  W.  Garner :  International  Law  and 
The  World  War.  2  vols.  New  York  and 
London,  1920. 

William  Edward  Hall :  International  Law. 
Seventh  edition  edited  by  A.  Pearce  Higgins. 
Oxford,  1917. 

Henry  Wager  Halleck :  International  Law 
or  Rules  Regulating  the  Intercourse  of  States 
in  Peace  and  War.  Third  edition  by  Sir  G. 
Sherston  Baker.  London,  1893.  Fourth 
edition  by  Sir  G.  Sherston  Baker,  assisted  by 
M.  N.  Drucquer.  2  vols.  London,  190S. 
Harvard  Law  Review.  Cambridge  (Mass.), 
1887- 
August  Wilhelm   Heffter :     Das  Europdische 

xlix 


LIST  OF  ABBREVIATIONS 


Hershey. 

Hertslet's  Commercial  Trea- 
ties. 


Hertslet's  Map  of  Europe  by 
Treaty. 


Higgins,  Hague  Peace  Confer- 
ences. 


Holland,  Studies. 

Holland,  War  and  Neutrality. 

Holls. 

Hurst  and  Bray's  Russian  and 
Japanese  Prize  Cases. 


Ills.  Law  Rev. 

Int. 

Int.  Law  Assoc.  Reports. 


Jacomet. 

Jour.  Comp.  Leg. 


Kent. 


Vblkerrecht  der  Gegenwart.  Eighth  edition 
by  F.  H.  Geffcken.  Berlin,  1888. 
Amos  S.  Hershey :  The  Essentials  of  Inter- 
national Law.  New  York,  1912. 
A  collection  of  the  Treaties  and  Conventions, 
and  Reciprocal  Regulations,  subsisting  be- 
tween Great  Britain  and  Foreign  Powers. 
London,  1820-  The  original  compiler  was 
Lewis  Hertslet.  The  present  editors  and  com- 
pilers are  Edward  Parkes  and  W.  L.  Berrow. 
The  Map  of  Europe  by  Treaty.  Showing  the 
various  political  and  territorial  changes  which 
have  taken  place  since  the  general  peace  of 
1814.  Compiler,  Sir  Edward  Hertslet.  4 
vols.  London,  1875-1891. 
A.  Pearce  Higgins :  The  Hague  Peace  Con- 
ferences and  other  international  conferences 
concerning  the  laws  and  usages  of  war ;  texts 
of  conventions  with  commentaries.  Cam- 
bridge (Eng.),  1909. 

Thomas  Erskine  Holland  :  Studies  in  Inter- 
national Law.  Oxford,  1898. 
Same  author :  Letters  to  The  Times  upon 
War  and  Neutrality.  Second  edition.  Lon- 
don, 1914  (with  a  Supplement  to  1916.  Lon- 
don, 1917). 

Frederick  William  Holls :  The  Peace  Con- 
ference at  the  Hague.  New  York,  1900. 
Russian  and  Japanese  Prize  Cases.  (Being  a 
collection  of  translations  and  summaries  of 
the  principal  cases  decided  by  the  Russian 
and  Japanese  Prize  Courts  arising  out  of  the 
Russo-Japanese  War,  1904-1905.)  Editors  : 
C.  J.  B.  Hurst  and  F  E.  Bray.  2  vols.  Lon- 
don.    1912-1913. 

Illinois  Law  Review.      Chicago,  1906- 
International. 

International    Law   Association    (The   Asso- 
ciation for  the  Reform  and  Codification  of  the 
Law  of  Nations),  Conferences,  1873- 
Robert  Jacomet :     Les  Lois  de  la  Guerre  Con- 
tinentale.     Paris,  1913. 

Journal  of  Comparative  Legislation  and  Inter- 
national Law  (prior  to  1918  entitled  Journal 
of  the  Society  of  Comparative  Legislation). 
London.  Fu-'st  Series,  1896-1897;  "New 
Series",  1899-1918  ;  Third  Series,  1919- 
James  Kent :  Commentary  on  International 
Law.  Second  edition  by  J.  T.  Abdy.  Cam- 
bridge (Eng.),  1878.     Cited  as  Abdy's  Kent. 

1 


LIST  OF  ABBREVIATIONS 


Kleen. 


Lawrence. 


Lawrence's  Wheaton. 
Law  Quar.  Rev. 
Liszt. 


Lorimer. 
Magoon,  Reports. 

Maine. 

Malloy's  Treaties. 


MS.  Desp. 

MS.  Dom.  Let. 

MS.  Inst. 

MS.  Misc.  Let. 

Martens,  Recueil. 
Martens. 

Martin  and  Baker. 


Merignhac. 

Mich.  Law  Rev. 
Minn.  Law  Rev. 
Moore,  Arbitrations. 


Richard  Kleen :  Lois  et  Usages  de  la  Nevr 
tralite  d'apres  le  Droit  International,  Con- 
ventionnel  et  Coutumier  des  Etats  civilises.  2 
vols.     Paris,  1898-1900. 

Thomas  J.  Lawrence :     Principles  of  Inter- 
national Law.     Third  edition,  Boston,  1900. 
Fourth  edition,  London,  1911.     Sixth  edition, 
Boston,  1915. 
See  Wheaton. 

The  Law  Quarterly  Review.  London.  1885— 
Franz  von  Liszt :  Das  Volkerrecht  systematisch 
dargestellt.  Ninth  edition,  Berlin,  1913.  Elev- 
enth edition,  Berlin,  1920. 
James  Lorimer :  The  Institutes  of  the  Law 
of  Nations.  2  vols.  Edinburgh,  1883-1884. 
Charles  E.  Magoon :  Reports  on  the  Law  of 
Civil  Government  under  Military  Occupa- 
tion. Washington,  1902. 
Sir  Henry  Sumner  Maine :  International  Law. 
New  York,  1888. 

Treaties,  Conventions,  International  Acts, 
Protocols  and  Agreements  between  the  United 
States  of  America  and  Other  Powers  (1776- 
1909).  Compiled  by  William  M.  Malloy, 
under  Resolution  of  the  Senate,  January  18, 
1909.  Senate  Document  No.  357,  Sixty-first 
Congress,  Second  Session.  2  vols.,  1910. 
United  States,  Department  of  State.  Manu- 
script Despatches. 

United  States,  Department  of  State.  Manu- 
script Domestic  Letters. 

United  States,  Department  of  State.  Manu- 
script Instructions. 

United  States,  Department  of  State.     Manu- 
script Miscellaneous  Letters. 
See  Rec. 

F.  de  Martens  :  Traite  de  Droit  International. 
Translated  from  the  Russian  into  French 
by  Alfred  Leo.  3  vols.  Paris,  1883-1887. 
Harold  H.  Martin  and  Joseph  R.  Baker: 
Laws  of  Maritime  Warfare  Affecting  Rights 
and  Duties  of  Belligerents  as  E.xisting  August 
1,  1914.  Department  of  State.  Washington, 
1918. 

Alexandre  Merignhac  :     Traite  de  Droit  Public 
International.     3  vols.     Paris,  1905-1912. 
Michigan  Law  Review.  Ann  Arbor,  1902- 
Minnesota  Law  Review.  Minneapolis,  1917- 
John  Bassett  Moore  :    History  and  Digest  of 
the  International  Arbitrations  to  which   the 


LIST   OF  ABBREVIATIONS 


Moore,  Dig. 


Moore,  Extradition. 


Naval  War  College,  Int.  Law 
Situations ;  Int.  Law  Topics ; 
Int.  Law  Documents. 


Naval  Instructions  Governing 
Maritime  Warfare. 


Noradounghian 


Nouv.  Rec.  or  Nouv.  Rec.  Gen. 

or  Nouv.  Rec.  Supp. 
Nys. 


Nys,  Origines. 
Oakes  &  Mowat. 


United  States  has  been  a  party,  together  with 
appendices  containing  the  treaties  relating  to 
such  arbitrations,  and  historical  and  legal 
notes  on  other  international  arbitrations  an- 
cient and  modern,  and  on  the  domestic  com- 
missions of  the  United  States  for  the  adjust- 
ment of  international  claims.  House  Misc. 
Doc.  No.  212,  Fifty-third  Congress,  Second 
Session.  6  vols.  Washington,  1898. 
John  Bassett  Moore  :  Digest  of  International 
Law  as  embodied  in  diplomatic  discussions, 
treaties  and  other  international  agreements, 
international  awards,  the  decisions  of  mu- 
nicipal courts  and  the  \\Titings  of  jurists,  and 
especially  in  documents,  published  and  un- 
published, issued  by  Presidents  and  Secre- 
taries of  State  of  the  United  States,  the 
opinions  of  the  Attorneys-General,  and  the 
decisions  of  courts,  Federal  and  State. 
House  Document  No.  551,  Fifty-sixth  Con- 
gress, Second  Session.  8  vols.  Washing- 
ton, 1906. 

John  Bassett  Moore :  A  Treatise  on  Extra- 
dition and  Interstate  Rendition.  2  vols. 
Boston,  1891. 

Annual  publications  of  United  States  Naval 
War  College,  Newport,  embracing  topics,  dis- 
cussions and  conclusions  pertaining  to  inter- 
national law,  also  the  texts  of  treaties  and 
other  documents,  under  direction  of  Prof.  John 
Bassett  Moore  for  the  year  1901,  and  since 
under  that  of  Prof.  George  Grafton  W'ilson. 
Washington,  1901- 

Instructions  of  the  Na\y  of  the  United  States 
Governing  Maritime  Warfare.  Issued  by 
the  Secretary  of  the  Navy,  June  30,  1917. 
Washington,  1918. 

Recueil    d'ades    internationaux    de     VEmpire 
Ottoman.     Collected  and  published  by  Gabriel 
Effendi    Noradounghian,       4    vols.       Paris, 
1897-1903. 
See  Rec. 

Ernest  Nys  :  Le  Droit  International.  3  vols. 
Brussels  and  Paris,  1904-1906.  Second  edi- 
tion, Brussels,  1912. 

Ernest  Nys :     Les  Origines  du  Droit    Inter- 
national.    Brussels,  1894. 
The  Great  Eiu-opean  Treaties  of  the   Nine- 
teenth  Century.     Edited   by   Sir    Augustus 

lii 


LIST  OF  ABBREVIATIONS 


Olivart. 

Ogilvie. 
Oppenheim. 

Phillimore. 

Piedelievre. 

Pol.  Sc.  Quar. 
Porter. 

Pradier-Fodere. 
Presidents'  Messages. 


Ralston,  Arbitral  Law, 


Ralston's  Report. 


Rec;  Rec.  Supp.;  Rec,  2  ed.; 
Nouv.  Rec.  ;  Nouv.  Rec. 
Supp.  ;    Nouv.  Rec.  Gen. 


Oakes  and  R.  B.  Mowat,  with  an  introduction 
by  Sir  H.  Erie  Richards.     Oxford,  1918. 
Marques    de    Olivart :     Tratad-o    de    Derecho 
internacional  publico.    4  vols.    Madrid,  1903- 
1904. 

Paul  Morgan  Ogilvie  :  International  Water- 
ways.    New  York,  1920. 

L.  Oppenheim  :  International  Law.  Seconrl 
edition.  2  vols.  London,  1912.  Third  edition 
edited  by  Ronald  F.  Roxburgh.  Vol.  I, 
London,  1920. 

Sir  Robert  Phillimore  :  Commentaries  upon 
International  Law.  4  vols.  London.  First 
edition,  1854-1861 ;  Second  edition,  1871- 
1874.  Third  edition,  1879-1889. 
Robert  Piedelie\Te :  Precis  de  droit  inter- 
national public  on  droit  des  gens.  2  vols.  Paris, 
1894-1895. 

Political  Science  Quarterly.  (Now  published 
at  New  York)  1886- 

John  Biddle  Porter  :  International  Law,  having 
special  reference  to  the  laws  of  war  on 
land.  Second  edition.  Fort  Leavenworth, 
Kansas.  Press  of  the  Army  service  schools. 
1914. 

P.  Pradier-Fodere :  Traite  de  Droit  Inter- 
national Public,  Europeen  et  Americain. 
8  vols.  Paris,  1885-1906. 
A  compilation  of  the  messages  and  papers  of 
the  Presidents,  prepared  under  the  direction 
of  the  Joint  Committee  on  Printing,  of  the 
House  and  Senate,  pursuant  to  an  Act  of  the 
Fifty-second  Congress  of  the  United  States. 
20  vols.  New  York  (1917). 
Jackson  H.  Ralston :  International  Arbitral 
Law  and  Procedure;  being  a  resume  of  the 
procedure  and  practice  of  international  com- 
missions, and  including  the  views  of  arbitra- 
tors upon  questions  arising  under  the  law  of 
nations.     Boston,  1910. 

Venezuelan  Arbitrations  of  1903,  including 
protocols,  personnel  and  rules  of  commissions, 
opinions  and  summary  of  awards,  etc.  Pre- 
pared by  Jackson  H.  Ralston,  assisted  by  W. 
T.  Sherman  Doyle.  Washington,  1904 
Recueil  des  principaux  traites  d'alliance,  df 
paix,  de  trcve,  de  neutralife,  de  commerce,  de 
limitcs,  d'echange,  etc.  (1761-1801.)  7  vols. 
Gottingen,  1791-1801.  Compiler:  Georg 
Friedrich  von  Martens.     Cited  as  Rec. 


liii 


LIST  OF  ABBREVIATIONS 


Rev.  Stat. 
Rev.  Droit  Int. 


Rev.  Gen. 


Richardson's  Messages. 


Richardson's  Messages,  1911 
ed. 

Rivier. 

Riv.  Dir.  Int. 


Supplement  au  Recueil,  etc.  10  vols,  in  12. 
Gottingen,  1802-1828.  Compilers:  G.  F. 
von  Martens,  Baron  Charles  de  Martens  and 
F.  Saalfeld.  Cited  as  Rec.  Supp. 
Recueil  des  principaux  traites  d'alliance,  de 
paix,  de  trcve,  etc.  2  ed.,  8  vols.  Gottingen, 
1817-1835.  Compilers  G.  F.  von  Martens 
and  Baron  Charles  de  Martens. 
Nouveau  Recueil  de  traites  d'alliance,  de  paix, 
de  trcve,  etc.  16  vols.  Gottingen,  1817-1841. 
Compilers  :  G.  F.  von  Martens,  Baron  Charles 
de  Martens,  F.  Saalfeld  and  F.  Murhard. 
Cited  as  Nouv.  Rec. 

Nouveaux  Supplhnens  an  Recueil  de  traites,  etc. 
3  vols.  Gottingen,  1839-1842.  Compiler: 
F.  Murhard.  Cited  as  N^ouv.  Rec.  Supp. 
Nouveau  Recueil  General  de  traites,  conventions, 
et  autres  transactions,  etc.  20  vols,  in  22.  Got- 
tingen, 1843-1875.  Compilers  :  F.  Murhard, 
Ch.  Murhard,  J.  Pinhas,  Charles  Samwer  and 
Jules  Hopf.  Cited  as  Nouv.  Rec.  Gen. 
Nouveau  Recueil  General  de  traites  et  autres 
actes  relatifs  aux  rapports  de  droit  international. 
Second  Series.  35  vols.  Gottingen  and  Leip- 
zig, 1876-1908.  Compilers  :  Charles  Samwer, 
Jules  Hopf  and  Felix  Stoerk.  Cited  as  Nouv. 
Rec.  Gen.,  2  ser. 

Nouveau  Recueil  General  de  traites  et  autres 
actes  relatifs   aux   rapports  de  droit  interna- 
tional.    Third     Series.     Leipzig,      1908- 
Compiler  :    Heinrich  Triepel.    Cited  as  Nouv. 
Rec.  Gen.,  3  ser. 

Revised  Statutes  of  the  United  States. 
Revue  de  Droit  International  et  de  Legislation 
Comparee.  First  Series,  1869-1898  (30  vols.) ; 
Second  Series,  1899-1913  (15  vols.);  Third 
Series,  1920-  Brussels. 
Revue  Generale  de  Droit  International  Public. 
Paris,  1894- 

A  Compilation  of  the  Messages  and  Pa- 
pers of  the  Presidents,  1789-1897.  Pub- 
lished, by  authority  of  Congress,  by  James 
D.  Richardson.  10  vols.  Washington, 
1896-1899. 

A  Compilation  of  the  Messages  and   Papers 
of  the  Presidents  by  James  D.  Richardson. 
11  vols.     New  York,  1911. 
Alphonse    Rivier :     Prirwipes    du    Droit    des 
Gens.     2  vols.     Paris,  1896. 
Rivista  di  Diritto  Intemazioncde.     First  Series, 

liv 


LIST  OF  ABBREVIATIONS 


Rules  of  Land  Warfare. 


Satow. 

J.  B.  Scott,  Armed  Neutral- 
ities. 


Int.  Law  Cases. 

Controversy  over  Neu- 
tral Rights. 


Dip.  Cor. 


Dip.  Docs. 


Hague  Court  Reports. 


Hague  Peace   Confer- 
ences. 


Rome,  1906-1910;  Second  Series,  Rome, 
1912- 

United  States,  War  Department :  Office  of 
the  Chief  of  Staff.  Rules  of  Land  Warfare. 
1914,  corrected  to  April  15,  1917.  Wash- 
ington, 1917. 

Sir  Ernest  Satow :  A  Guide  to  Diplomatic 
Practice.  2  vols.  London,  1917. 
The  Armed  Neutralities  of  17S0  and  1800.  A 
collection  of  official  documents  preceded  by 
the  views  of  representative  publicists.  Ed- 
ited by  James  Bro\\-n  Scott.  Carnegie  En- 
dowment for  International  Peace,  Division  of 
International  Law.  New  York,  1918. 
Cases  on  International  Law,  etc.,  by  James 
Brown  Scott,  Boston,  1902. 
The  Controversy  over  Neutral  Rights  between 
the  United  States  and  France,  1797-1800.  A 
collection  of  American  State  papers  and  ju- 
dicial decisions  edited  by  James  Brown  Scott. 
Carnegie  Endowment  for  International  Peace, 
Division  of  International  Law.  New  York, 
1917. 

Diplomatic  Correspondence  between  the 
United  States  and  Germany  (August  1,  1914- 
April  6,  1917).  Edited  with  an  introduction 
by  James  Brown  Scott.  Carnegie  Endow- 
ment for  International  Peace,  Division  of 
International  Law.  Oxford,  1918. 
Diplomatic  Documents  Relating  to  the  Out- 
break of  the  European  War.  Edited  with  an 
introduction  by  James  Brown  Scott.  2  vols. 
Carnegie  Endowment  for  International  Peace, 
Division  of  International  Law.  New  York, 
1916. 

The  Hague  Court  Reports.  Comprising  the 
awards,  accompanied  by  syllabi,  the  agree- 
ments for  arbitration,  and  other  documents 
in  each  case  submitted  to  the  Permanent 
Court  of  Arbitration  and  to  Commissions  of 
Inquiry  under  the  provisions  of  the  conven- 
tions of  1899  and  1907  for  the  Pacific  Settle- 
ment of  International  Disputes.  Edited  with 
an  introduction  by  James  Brown  Scott.  Car- 
negie Endowment  for  International  Peace, 
Division  of  International  Law.  New  York, 
1916. 

James  Brown  Scott :  The  Hague  Peace  Con- 
ferences of  1899  and  1907.  2  vols.  Baltimore, 
1909. 


Iv 


LIST   OF  ABBREVIATIONS 


President  Wilson's    For- 
eign Policy. 


Reports  to  Hague   Con- 
ferences. 


Resolutions. 


Survey  Int.  Relations 
between  United  States 
and  Germany. 


Treaties     for    Advance- 
ment of  Peace. 


Secy. 

Senate  Reports,  For.  Rel. 


Snow,  American  Diplomacy. 

Snow,  Cases. 

See. 
Stat. 
Stockton's  Naval  War  Code. 


Stockton,  Outlines. 


Stowell,    Consular    Cases    or 
Stowell's  Cases. 


President  Wilson's  Foreign  Policy.  Messages, 
Addresses,  Papers.  Edited  with  introduction 
and  notes  by  .James  Brown  Scott.  New  York, 
1918. 

The  Reports  to  the  Hague  Conferences  of  1899 
and  1907.  Edited,  with  an  introduction,  by 
James  Brown  Scott.  Carnegie  Endowment 
for  International  Peace.  Division  of  Inter- 
national Law.  O.xford,  1917. 
Resolutions  of  the  Institute  of  International 
Law  dealing  with  the  law  of  nations.  Col- 
lected and  translated  under  the  supervision 
of  and  edited  by  James  Brown  Scott.  Car- 
negie Endowment  for  International  Peace, 
Division  of  International  Law.  New  York, 
1916. 

A  Survey  of  International  Relations  between 
the  United  States  and  Germany,  August  1, 
1914-April  6,  1917  (based  on  official  doc- 
uments), by  James  Brown  Scott.  New  York, 
1917. 

Treaties  for  the  Advancement  of  Peace  be- 
tween the  United  States  and  other  Powers, 
negotiated  by  the  Honorable  William  J.  Bryan, 
Secretary  of  State.  With  an  introduction  by 
James  Brown  Scott.  Oxford,  1920. 
Secretary. 

Compilation  of  Reports  of  Committee  on 
Foreign  Relations,  United  States  Senate, 
1789-1901.  Senate  Document  No.  231,  Fifty- 
sixth  Congress,  Second  Session.  8  vols.  1901. 
Freeman  Snow :  Treaties  and  Topics  in 
American  Diplomacy.  Boston,  1894. 
Freeman  Snow  :  Cases  and  Opinions  on  In- 
ternational Law.  Boston,  1893. 
Society. 

Statutes  at  Large  of  the  United  States,  1789- 
Captain  Charles  H.  Stockton,  U.  S.  N. :  The 
Laws  and  Usages  of  War  at  Sea.  A  Naval 
War  Code.  Washington,  1900.  (This  code 
was  also  published  as  Appendix  I  of  Naval 
War  College,  International  Law  Situations, 
1903.) 

Rear-Admiral  Charles  H.  Stockton,  U.  S.  N. : 
Outlines  of  International  Law.  New  York, 
1914. 

Consular  Cases  and  Opinions  from  the  De- 
cisions of  the  English  and  American  Courts 
and  the  Opinions  of  the  Attorneys-General, 
by  Ellery  C.  Stowell.     Washington,  1909. 

Ivi 


LIST   OF   ABBREVIATIONS 


Stowell     and     Munro,     Int. 
Cases. 


Takahashi,  Cases. 


Taylor. 

de  Testa,  Rec. 


Treaty  Series. 

Treaty  Vol.  (1776-1887). 


Treaty  Collections. 

Twiss. 

Univ.  Penn.  Law  Rev. 

U.  S.  Comp.  Stat.  1918  ed. 


U.  S.  Comp.  Stat.  1919  Supp. 
Van  Dyne,  Citizenship. 
Van  Dyne,  Naturalization. 
Walker. 


InternatioRal  Cases,  Arbitrations  and  Incidents 
Illustrative  of  International  Law  as  Practiced 
by  Independent  States,  by  Ellery  C.  Stowell 
and  Henry  F.  Munro.  2  vols.  Boston,  1916. 
Sakuye  Takahashi :  Cases  on  International 
Law  during  the  Chino-Japanese  War.  Cam- 
bridge (Eng.),  1899. 

Hannis  Taylor :  International  Public  Law 
Chicago,  190L 

Recueil  des  Traites  de  la  Porte  Ottomane  avec 
les  Puissances  Etrangeres  (from  the  first  treaty 
concluded  in  1536,  between  Suleyman  I  and 
Francis  I).  Editors :  Baron  I.  de  Testa, 
Baron  Alfred  de  Testa  and  Baron  Leopold  de 
Testa.  10  vols.  Paris,  1864-1901. 
United  States,  Department  of  State ;  publi- 
cations of  treaties  of  the  United  States  ac- 
cording to  number. 

Treaties  and  Conventions  Concluded  between 
The  United  States  of  America  and  Other 
Powers,  since  July  4,  1776.  Edited  by  John 
H.  Haswell,  with  notes  by  J.  C.  Bancroft 
Davis,  and  additions  by  the  editor.  Depart- 
ment of  State,  1889. 

A  Tentative  List  of  Treaty  Collections,  issued 
by  the  Department  of  State  of  the  United 
States,  1919. 

Sir  Travers  Twiss.  The  Law  of  Nations. 
2  vols.  Oxford,  1861-1863.  Second  edition. 
2  vols.     Oxford,  1875. 

University  of  Pennsylvania  Law  Review  and 
American  Law  Register,  being  a  continuation 
since  1908  (vol.  56)  of  the  American  Law 
Register,  1852-1907.  Philadelphia.  (Cited 
as  Am.  Law  Reg.) 

United  States  Compiled  Statutes,  1918  com- 
pact edition,  embracing  the  statutes  of   the 
United  States  of  a  general  and    permanent 
nature  in  force  July  16,  1918,  with  an  appendix 
covering  acts  June  14  to  July  16,  1918.     Com- 
piled on  plan  devised  by  John  H.   Mallory. 
West  Publishing  Company.  St.  Paul,   1918. 
1919  Supplement  to  U.  S.  Compiled  Statutes, 
1918  Compact  Edition.     St.  Paul,  1919. 
Frederick    Van    Djme :     Citizenship    of    the 
United  States.      Rochester,  1904. 
The   Law   of   Naturalizaton  of  the    United 
States.     Washington,  1907. 
Thomas  Alfred  Walker :     Manual  of  Public 
International  Law.     Cambridge  (Eng.),  1895. 

Ivii 


LIST  OF  ABBREVIATIONS 


Walker,  Hist. 
Walker,  Science. 
Ward,  Hist. 

Westlake. 

Westlake,  Collected  Papers. 

Wharton,  Dig. 

Wharton,  Dip.  Cor. 

Wheaton. 


Wilson. 

Wilson,     Hague     Arbitration 
Cases. 


Wilson  and  Tucker. 


Woolsey. 


Yale  L.  J. 
Yale  Rev. 


Same  Author  :  History  of  the  Law  of  Nations. 
Cambridge  (Eng.),  1899. 
Same  Author :  The  Science  of  International 
Law.     London,  1S83. 

Robert  Ward  :  An  Enquiry  into  the  Foun- 
dation and  History  of  the  Law  of  Nations  in 
Europe,  from  the  Time  of  the  Greeks  and 
Romans  to  the  Age  of  Grotius.  2  vols. 
Dublin,  1795. 

John  Westlake  :  International  Law.  Second 
edition.  2  vols.  Cambridge  (Eng.),  1910- 
1913. 

The  Collected  Papers  of  John  Westlake  on 
Public  International  Law.  Edited  by  L. 
Oppenheim.  Cambridge  (Eng.),  1914. 
A  Digest  of  the  International  Law  of  the 
United  States.  Edited  by  Francis  WTiarton. 
Second  edition.  3  vols.  Washington,  1887. 
Diplomatic  Correspondence  of  the  Ameri- 
can Revolution.  Edited  by  Francis  Whar- 
ton. 6  vols.  Washington,  1889. 
Henry  Wheaton  :  Elements  of  International 
Law.  Second  annotated  edition  by  William 
Beach  Lawrence.  Boston,  1863.  (Cited  as 
Lawrence's  Wheaton.)  Eighth  edition  with 
notes  by  R.  H.  Dana,  Jr. ,  Boston,  1866.  (Cited 
as  Dana's  Wheaton.)  Fifth  English  edition 
revised,  considerably  enlarged  and  rewTitten 
by  Coleman  Phillipson,  with  an  introduction 
by  Sir  Frederick  Pollock.  London,  1916. 
(Cited  as  Phillipson's  WTieaton.) 
George  Grafton  Wilson :  Handbook  of  In- 
ternational Law.  St.  Paul,  1910. 
The  Hague  Arbitration  Cases  :  Compromises 
and  awards  with  maps  in  cases  decided  under 
the  provisions  of  the  Hague  Conventions  of 
1899  and  1907  for  the  Pacific  Settlement 
of  International  Disputes  and  texts  of  the 
conventions,  by  George  Grafton  Wilson. 
Boston,  1915. 

George  Grafton  Wilson  and  George  Fox 
Tucker  :  International  Law.  Fifth  edition. 
New  York,  1910.  Sixth  edition,  New  York, 
1915. 

Theodore    Dwight    Woolsey :    Introduction 
to  the  Study  of  International  Law.     Sixth 
edition  revised   and   enlarged   by  Theodore 
SaHsbury  Woolsey.     New  York,  1901. 
Yale  Law  Journal.     New  Haven,  1891- 
Yale  Review.     New  Haven,  1913- 

Iviii 


LIST  OF  ABBREVIATIONS 

Zeit.  Int.  Zeitschrift    fiir    Internationales    Privat-   und 

Strafrecht.  1891-  (Erlangen)  Since  1913 
(Munich  and  Leipzig). 

Zeit.  Volk.  Zeitschrift  fur  Volkerrecht  und  Bundesstaats- 

recht.  Breslau,  1906-  Since  1913,  beginning 
with  Vol.  VII,  entitled  Zeitschrift  fiir  Volker- 
recht. 


lix 


INTERNATIONAL  LAW 

CHIEFLY   AS    INTERPRETED    AND 
APPLIED   BY   THE   UNITED   STATES 


VOLUME    ONE 


PRELIMINARY 

CERTAIN  ASPECTS  OF  INTERNATIONAL  LAW 

§  L   Definition  and  Nature. 

The  term  international  law  may  be  fairly  employed  to  designate 
the  principles  and  rules  of  conduct  declaratory  thereof  which 
States  feel  themselves  bound  to  observe,  and,  therefore,  do  com- 
monly observe  in  their  relations  with  each  other.^  From  a  sense 
of  legal  obligation  to  respect  what  is  thus  prescribed,  enlightened 
States,  notwithstanding  grave  and  occasional  lapses,  have  gener- 
ally molded  their  practice.  That  which  prevailed  when  the 
United  States  came  into  being  manifested  the  existence  of  a  body 
of  law  which,  although  long  in  the  making,  had  undergone  a  de- 

^  "International  law,  as  understood  among  civilized  nations,  may  be  de- 
fined as  consisting  of  those  rules  of  conduct  which  reason  deduces,  as  consonant 
to  justice,  from  the  nature  of  the  society  existing  among  independent  nations ; 
with  such  definitions  and  modifications  as  may  be  established  by  general 
consent."     Dana's  Wheaton,  §  14. 

"We  define  international  law  to  be  the  aggregate  of  the  rules  which  Chris- 
tian states  acknowledge  as  obligatory  in  their  relations  to  each  other,  and  to 
each  other's  subjects."     Woolsey,  6  ed.,  §  5. 

"International  law  consists  in  certain  rules  of  conduct  which  modern 
civilised  states  regard  as  being  binding  on  them  in  their  relations  with  one 
another  with  a  force  comparable  in  nature  and  degree  to  that  binding  the 
conscientious  person  to  obey  the  laws  of  his  country,  and  which  they  also  re- 
gard as  being  enforceable  by  appropriate  means  in  case  of  infringement." 
HaU,  Higgins'  7  ed.,  p.  1. 

See  also  Bonfils-Fauchille,  7  ed.,  §  1 ;  Calvo,  5  ed.,  §  1 ;  Martens,  French 
translation  by  Leo  (1883-1887),  I,  §  3 ;  Rivier,  I,  §  3;  Sir  Frederick  PoUock. 
"The  Sources  of  International  Law",  Columbia  Law  Rev.,  II,  511. 

VOL.    I — 1  1 


§  1]  CERTAIN  ASPECTS  OF  INTERNATIONAL  LAW 

velopment  of  barely  a  century  and  a  half  from  the  time  when  Gro- 
tius  summoned  the  nations  to  follow  the  path  which  he  blazed.^ 

§  2.   Causes  and  Processes  of  Evolution. 

States  would  not  have  been  disposed  to  unite,  however  loosely, 
in  order  to  regulate  their  conduct  with  respect  to  each  other  by 
principles  regarded  as  unresponsive  to  what  were  conceived  to  be 
the  requirements  of  international  justice;  and  there  could  have 
been  no  common  zeal  for  that  justice  unless  States  were  by  their 
nature  and  composition  intolerant  of  international  disorder  and 
incapable  of  remaining  isolated  from  each  other.  Inasmuch  as 
they  were  entities  composed  of  human  beings  possessed  as  such 
with  moral  sensibilities  and  social  instincts  which  grew  in  vigor 
and  fineness  as  civilization  strode  forward,  there  was  solid  cause 
for  a  system  of  jurisprudence  applicable  to  the  requirements  of 
the  common  life.^  As  soon  as  general  acquiescence  concerning 
those  requirements  became  assured,  an  international  law  was 
capable  of  being  and  sprang  into  life. 

The  discovery  and  use  of  new  methods  of  communicating  intelli- 
gence, the  development  of  means  of  transportation  by  sea  and 
land  and  air,  together  with  the  transformation  of  instrumentali- 
ties employed  in  the  military  and  naval  operations  of  a  belligerent, 
have,  since  the  close  of  the  eighteenth  century,  and  particularly 
since  the  beginning  of  the  twentieth,  served  to  weld  together  the 
society  of  nations  by  fresh  and  enduring  ties.  The  resulting 
growth  of  international  social  and  commercial  intercourse  has 
not  ceased  to  influence  profoundly  the  trend  of  the  law.  Certain 
results  seem  to  be  already  apparent.  It  has  been  perceived,  for 
example,  that  rules  of  conduct,  however  definitely  established,  if 
applied  under  conditions  differing  sharply  from  those  prevailing 
when  they  were  laid  down,  fail  to  reflect,  and  may  even  oppose, 
the  underlying  principles  to  which  their  origin  was  due.  Again, 
The  World  War  has  served  to  bring  home  to  peoples  and  states- 
men alike,  a  vivid  sense  of  the  oneness  of  interest  binding  the 
States  of  every  continent,  and  a  corresponding  realization  of  the 

'  Grotius  published  his  celebrated  work  De  Jure  Belli  Ac  Pacts  in  1625. 
See,  in  this  connection.  Hamilton  Vreeland,  Jr.,  Hugo  Grotius  the  Father  of 
the  Modern  Science  of  International  Law,  New  York,  1917. 

2  "The  real  appeal  of  Grotius  was  not  to  'man  in  a  state  of  nature',  but  to 
the  sense  of  justice,  humanity,  righteousness,  evolved  under  the  reign  of  God 
in  the  hearts  and  minds  of  thinking  men.  His  appeal  was  not  to  a  '  con- 
tract made  in  the  primeval  woods ',  but  to  the  hearts,  minds,  and  souls  of  men, 
developed  under  Christian  civilization."  Andrew  D.  White,  "The  Warfare 
of  Humanity  with  Unreason :  Hugo  Grotius  ",  Atlantic  Monthly,  XCV,  105, 
114. 

2 


CAUSES  AND  PROCESSES  OF  EVOLUTION  [§  2 

harm  sustained  by  all  through  contempt  by  a  single  State  for 
definite  obligations  acknowledged  by  the  international  society  to 
govern  each  of  its  members. 

Thus  it  is  now  recognized  on  all  sides  that  the  welfare  of  each 
member  of  the  family  of  nations,  and,  therefore,  of  the  interna- 
tional society  itself,  demands  fresh  enunciation,  by  codification 
or  otherwise,  of  the  principles  of  law  that  are  hereafter  to  govern 
the  conduct  of  States.  It  is  perceived  also  that  differences  be- 
tween them  must,  within  a  wide  range  and  far  beyond  limits 
heretofore  accepted,  be  adjusted  according  to  strict  regard  for 
those  principles  as  impartially  interpreted  and  applied  by  a  per- 
manent international  court  of  justice.  The  sacrifices  entailed  by 
such  procedure  no  longer  appear  to  be  heavier  than  individual 
States  are  prepared  to  make.  The  basis  of  general  agreement 
is  believed  to  exist.^  It  may  be  that  enlightened  States  are  pre- 
pared, also,  generally  to  unite  in  the  effort  to  adjust  controversies 
not  regarded  as  arbitrable  (whether  or  not  technically  to  be 
deemed  justiciable)  by  recourse  to  some  international  non-judi- 
cial body.^ 

It  is  to  be  doubted,  however,  whether  as  yet  the  several  States 
are  prepared  to  acknowledge  generally  that  the  welfare  of  the 
international  society  requires  each  individual  member  thereof 
to  undertake  to  become  itself  a  belligerent  in  order  to  penalize 
a  State  which,  in  defiance  of  the  law  and  of  special  obligations  to 
adjust  its  differences  by  amicable  means,  resorts  to  war  in  order  to 
attain  even  an  unjust  end.  Nevertheless,  it  must  be  constantly 
borne  in  mind  that  what  the  consensus  of  opinion  of  enlightened 
States  deems  to  be  essential  to  the  welfare  of  the  international 
society  is  ever  subject  to  change,  and  that  the  evolution  of  thought 
in  this  regard  remains  as  constant  as  at  any  time  since  the  United 
States  came  into  being.  Above  all,  it  must  be  apparent  that 
whenever  the  interests  of  that  society  are  acknowledged  to  be  at 
variance  with  the  conduct  of  the  individual  State,  there  is  es- 
tablished the  ground  for  a  fresh  rule  of  restraint  against  which 
old  and  familiar  precedents  may  cease  to  be  availing. 

»  See  Permanent  Court  of  International  Justice  Designed  by  Advisory 
Committee  of  Jurists,  1920,  infra,  §§  573-575. 

2  It  should  be  observed  that  particular  plans  or  methods  of  organization 
proposed  for  general  acceptance  are  not  to  be  taken  as  necessarily  indicative 
of  the  nature  or  extent  of  what  is  at  the  time  the  actual  existing  basis  of  inter- 
national accord.  Opposition  to  the  theory  of  certain  devices,  however  scien- 
tifically formulated,  is  not  proof  that  others  cannot  win  approval.  Diversity 
of  opinion  as  to  method  is  not  to  be  taken  as  establishing  the  absence  of  general 
acquiescence  as  to  principle. 

3 


§  2]  CERTAIN  ASPECTS   OF   INTERNATIONAL  LAW 

The  growth  of  the  law  governing  the  relations  between  States 
has  been  characterized  in  practice  by  acceptance  of  the  theory 
that  the  society  of  nations  is  comprised  primarily  of  a  number  of 
so-called  independent  States,  resembling  each  other  in  their  ac- 
knowledgment of  no  duty  to  recognize  any  common  superior,  and 
deemed  accordingly  to  stand  upon  an  equal  footing.^  The  basis 
of  the  law  imposing  common  rules  of  restraint  has  been  the  con- 
sent of  the  several  independent  States  which  were  to  be  governed 
thereby.  That  consent  has,  moreover,  been  yielded  by  necessary 
implication  by  each  new  State  as  a  condition  essential  to  its 
recognition  and  admission  to  membership  in  the  international 
society.^  Thus  the  law  of  nations  may  be  fairly  deemed  to  reflect 
at  any  given  time  what  the  several  members  thereof  have  in  fact 
accepted  as  the  law  governing  their  mutual  relations.^  Important 
consequences  follow.  While,  on  the  one  hand,  there  may  be  diffi- 
culty in  ascertaining  the  extent  to  which  the  several  independent 
States  have  accepted  a  particular  principle  or  rule  declaratory 
of  it,  still  greater  difficulty  is  encountered  when  attempt  is  made 
to  effect  alterations  in  the  face  of  substantial  opposition.  It  is 
not  conceivable,  for  example,  that  the  United  States  would  admit 
the  right  of  the  principal  European  powers  to  deprive  it  against 
its  will  of  privileges  long  acknowledged  to  be  the  possession  of 
each  independent  State.''     Xor  would  it  be  admitted  that  a  mere 

^  See  The  Equality  of  Independent  States,  infra,  §  11. 

^  See  Recognition,  In  General,  infra,  §  36. 

^  "  The  consent  of  the  international  society  to  the  rules  prevailing  in  it  is 
the  consent  of  the  men  who  are  the  ultimate  members  of  that  society.  When 
one  of  those  rules  is  invoked  against  a  State  it  is  not  necessarj'^  to  show  that 
the  State  in  question  has  assented  to  the  rule  either  diplomatically  or  by  hav- 
ing acted  on  it,  though  it  is  a  strong  argument  if  you  can  do  so.  It  is  enough 
to  show  that  the  general  consensus  of  opinion  within  the  limits  of  European 
civilisation  is  in  favour  of  the  rule."     Westlake,  2  ed.,  I,  16. 

Story,  J.,  in  the  case  of  La  Jeune  Eugenie,  2  Mason,  409,  448,  declared : 
"What,  therefore,  the  law  of  nations  is,  does  not  rest  upon  mere  theory,  but 
may  be  considered  as  modified  by  practice,  or  ascertained  by  the  treaties  of 
nations  at  different  periods.  It  does  not  follow,  therefore,  that  because  a 
principle  cannot  be  found  settled  by  the  consent  or  practice  of  nations  at  one 
time,  it  is  to  be  concluded,  that  at  no  subsequent  period  the  principle  can  be 
considered  as  incorporated  into  the  public  code  of  nations.  Nor  is  it  to  be 
admitted,  that  no  principle  belongs  to  the  law  of  nations  which  is  not  uni- 
versally recognised  as  such,  by  all  civilized  communities,  or  even  by  those 
constituting,  what  may  be  called  the  Christian  States  of  Europe.  .  .  . 

"But  I  think  it  may  be  unequivocally  affirmed,  that  every  doctrine,  that 
may  be  fairly  deduced  by  correct  reasoning  from  the  rights  and  duties  of 
nations,  and  the  nature  of  moral  obligations,  may  theoretically  be  said  to 
exist  in  the  law  of  nations ;  and  unless  it  be  relaxed  or  waived  by  the  consent 
of  nations  which  may  be  evidenced  by  their  general  practice  and  customs,  it 
may  be  enforced  by  a  court  of  justice  whenever  it  arises  in  judgment." 

*  It  is  not  suggested  that  the  opposition  of  a  strong  and  solitary  State  could 
ultimately  prevail  against  the  consensus  of  opinion  of  the  entire  civilized  world, 

4 


CAUSES  AND  PROCESSES  OF  EVOLUTION  [§  2 

group  of  States  could  so  amend  the  law  of  nations  as  to  increase 
the  obligations  of  members  of  another  less  powerful  group  with- 
out their  acquiescence,  unless  it  wrung  consent  by  the  sword,  and 
by  the  sword  also  stifled  opposition  until  in  fact  no  real  objec- 
tions were  heard  for  a  long  period.^  On  principle,  therefore, 
changes  in  the  law  of  nations  require  the  consent  of  the  States 
affected  thereby.  For  that  reason  the  likeliliood  that  proposals 
designed  to  effect  a  change  will  receive  the  necessary  approval, 
must  be  proportional  to  the  degree  to  which  they  are  generally 
deemed  to  promote  respect  for  fundamental  principles  of  inter- 
national justice.  Doubtless  any  individual  State  may  propose 
changes;  and  if  they  are  accepted  it  is  because  the  international 
society  is  convinced  of  the  benefits  derivable  from  them.^ 
Modifications  may  also  be  wTought  gradually  and  imperceptibly, 
like  those  which  by  process  of  accretion  alter  the  course  of  a 
river  and  change  an  old  boundary.  Thus  without  specific  con- 
ventional arrangement,  and  by  practices  manifesting  a  common 
and  sharp  deviation  from  formerly  accepted  rules,  the  society 
of  States  may  in  fact  modify  the  regulations  governing  its 
members. 

The  duty  of  a  State  to  observe  a  rule  of  conduct  with  respect 
to  any  other  is  incompatible  with  a  right  on  its  part  to  free  itself 
from  such  an  obligation.  If  civilized  States  feel  themselves 
bound  to  observe  rules  of  international  conduct  established  by 
general  consent,  and  purport  to  do  so  from  a  sense  of  legal 
obligation,  it  is  because  they  acknowledge  that  that  consent 
has  been  irrevocably  given.  Such  a  theory  has  obtained  in 
practice,  forbidding  the  individual  State  to  free  itself  from  the 
operation  of  restrictions  which  the  law  of  nations  was  deemed 
to  impose.^  The  Department  of  State  has  on  numerous  occa- 
sions denounced  attempts  of  delinquent  States  to  invoke  a  looser 
doctrine. 

or  that  such  a  State  would  not  be  finally  compelled  to  acquiesce  in  changes 
which  it  once  opposed.  The  reason,  however,  for  its  impotence  would  doubt- 
less be  in  part  the  unsoundness  of  its  stand ;  for  it  is  hardly  probable  that  a 
single  isolated  State  could  rightly  denounce  as  unjust  a  proposed  change  which 
had  won  the  approval  of  all  other  civilized  powers. 

*  Thus  the  States  signatory  to  the  Declaration  of  Paris  of  1856  announced 
that  "  The  present  declaration  shall  not  be  binding  except  upon  those  Powers 
which  have  acceded,  or  shall  accede  to  it."     Nouv.  Rec.  Gen.,  XV,  791. 

Compare  the  theory  of  Art.  XVII  of  the  Covenant  of  the  League  of  Nations. 

*  The  United  States  has  at  times  proposed  changes  ultimately  winning 
general  approval,  and  that  because  of  their  inherent  worth  as  a  means  of  pro- 
moting international  justice.  Its  action  as  a  neutral  before  the  close  of  the 
eighteenth  century  is  illustrative,  infra,  §§  844-847. 

3  The  Schooner  Nancy,  27  Ct.  CI.  99,  109. 

5 


§3]         CERTAIN  ASPECTS  OP   INTERNATIONAL  LAW 

§  3.    Sources.     Evidence. 

The  sources  of  international  law,  that  is,  the  places  where  the 
principles  and  rules  governing  the  conduct  of  States  first  appear 
as  such,  as  distinct  from  the  causes  responsible  for  that  law  and 
the  evidence  of  what  it  is,  are  deemed  to  be  primarily,  custom, 
and  secondarily,  certain  agreements  or  treaties.^  Few  treaties 
are  to  be  regarded  as  sources  of  international  law,  because,  apart 
from  the  design  of  the  contracting  parties,  the  provisions  of  such 
compacts  infrequently  give  expression  to  new  rules  of  conduct 
which,  through  their  reasonableness  and  general  responsiveness 
to  the  needs  of  the  international  society,  win  its  full  approval. 
Some  agreements  have,  however,  been  so  operative,  serving  to 
register  not  only  the  views  of  the  contracting  parties,  but  also  the 
beginnings  of  rules  of  restraint  which  ultimately  met  with  general 
acquiescence. 

Custom  as  a  source  of  international  law  must  not  be  confounded, 
as  Westlake  has  observed,  "with  mere  frequency  or  habit  of  con- 
duct." It  signifies  rather  "that  line  of  conduct  which  the  society 
has  consented  to  regard  as  obligatory."  ^  In  such  a  sense  in- 
ternational custom  is  indicative  of  a  general  practice  which  may 
be  fairly  accepted  as  law.^ 

The  evidence  of  international  law  is  to  be  found  in  many  places. 
A  variety  of  acts  and  documents  bear  testimony  as  to  the  principles 
which  are  deemed  actually  to  govern  the  conduct  of  States.  The 
views  of  text-writers  or  commentators  are  oftentimes  cited  as 
authoritative.  The  Supreme  Court  of  the  United  States  has  ob- 
served, however,  that  "such  works  are  resorted  to  by  judicial 
tribunals,  not  for  the  speculation  of  their  authors  concerning  what 
the  law  ought  to  be,  but  for  trustworthy  evidence  of  what  the 
law  really  is."  ^     Whenever  such  "^Titers  do  not  evince  a  disposi- 

^  Frantz  Despagnet,  Cours  de  Droit  International  Public,  4  ed.,  §§  55-60; 
Bonfils-Fauchille,  7  ed.,  §  46;   Oppenheim,  2  ed.,  I,  §  16. 

*  Westlake,  I,  2  ed.,  14,  where  it  is  added :  "In  any  state  or  other  society 
in  which  customary  law  is  admitted,  custom  as  a  part  of  law  means  the  con- 
duct which  is  enforced  as  well  as  the  strict  or  loose  nature  of  the  society  allows 
—  not  always  very  well,  as  in  the  case  of  national  law,  in  the  ruder  stages  of 
national  existence  —  and  which  is  followed  as  well  from  the  fear  of  such  en- 
forcement as  from  the  persuasion  that  the  received  rule  requires  such  conduct 
to  be  followed." 

3  See  Art.  XXXV,  Section  2,  of  Draft-Scheme  for  the  institution  of  the 
Permanent  Court  of  International  Justice,  presented  to  the  Council  of  the 
League  of  Nations  by  the  Advi.'jory  Committee  of  Jurists,  and  communicated 
by  the  League  to  numerous  States  August  27,  1920. 

*  Mr.  Justice  Grav,  in  the  opinion  of  the  Court,  in  The  Paquete  Habana, 
175  U.  S.  677,  700. 

According  to  Art.  XXXV  of  the  Draft-Scheme  for  the  institution  of  the 

6 


SOURCES.    EVIDENCE  [§  3 

tion  to  mirror  the  practice  of  their  time,  the  views  expressed  lack 
evidential  value. ^ 

Doubtless  some  treaties  afford  evidence  of  international  law. 
Those  which,  for  example,  purport  to  enunciate  general  rules  of 
conduct,  to  which  substantially  all  enlightened  States  consent, 
embracing  those  which  have  not  formally  adhered  to  the  arrange- 
ments, are  of  such  a  kind.-  Certain  conventions  of  the  Hague 
Peace  Conferences  of  1899  and  1907  may  be  deemed  to  fulfill  such 
a  function. 

Official  acts  or  declarations  of  individual  States  are  at  times 
referred  to  as  evidence  of  international  law.  They  may  serve  to 
indicate  the  understanding  of  the  governments  thereof  with  re- 
spect to  the  nature  and  scope  of  particular  rights  and  obligations. 
The  diplomatic  correspondence  of  the  United  States  has  oftentimes 
revealed  the  precise  views  of  those  in  charge  of  its  foreign  relations 
touching  the  requirements  of  the  law  of  nations.  Enunciations 
of  legal  principle  emanating  from  the  Department  of  State  are  to 
be  respected  when  they  purport  to  express  what  the  United  States 
officially  declares  to  be  the  general  usage  or  practice  establishing 

Permanent  Court  of  International  Justice,  communicated  by  the  Council  of 
the  League  of  Nations,  August  27,  1920,  "the  teachings  of  the  most  highly 
qualified  publicists  of  the  various  nations"  were  declared  to  be  "subsidiary 
means  for  the  determination  of  rules  of  law." 

1  The  inclination  of  distinguished  scholars  to  heed  the  views  of  other  theorists 
rather  than  those  upon  which  States  act  from  a  sense  of  legal  obligation,  tends 
in  certain  countries  to  weaken  the  respect  entertained  for  treatises  purporting 
to  be  declaratory  of  international  law,  because  doubt  is  felt  whether  the  authors 
have  in  fact  made  serious  attempt  to  bear  witness  to  the  rules  actually  govern- 
ing the  relations  of  independent  States. 

See  Lord  Alverstone,  C.  J.,  in  West  Rand  Central  Gold  Mining  Co.  v.  The 
King  [1905]  2  K.  B.  391 ;   Evans,  Cases,  15. 

*  "There  is  no  doubt  that,  when  all  or  most  of  the  great  Powers  have  de- 
liberately agreed  to  certain  rules  of  general  application,  the  rules  approved 
by  them  have  very  great  weight  in  practice  even  among  States  which  have 
never  expressly  consented  to  them.  It  is  hardly  too  much  to  say  that  declara- 
tions of  this  kind  may  be  expected,  in  the  absence  of  prompt  and  effective 
dissent  by  some  Power  of  the  first  rank,  to  become  part  of  the  universally 
received  law  of  nations  within  a  moderate  time.  As  among  men,  so  among 
nations,  the  opinions  and  usage  of  the  leading  members  in  a  community  tend 
to  form  an  authoritative  example  for  the  whole.  A  striking  proof  of  this  tend- 
ency was  given  in  the  war  of  1898  between  Spain  and  the  United  States. 
Neither  belligerent  was  a  party  to  the  article  of  the  Declaration  of  Paris  of 
1856  against  privateering ;  the  United  States  had  in  fact  refused  to  join  in  it. 
Moreover,  the  Declaration  of  Paris  was  not,  in  point  of  form,  an  instrument 
of  the  highest  authority.  Nevertheless,  when  the  war  of  1898  broke  out, 
the  United  States  proclaimed  its  intention  of  adhering  to  the  Declaration 
of  Paris,  and  the  rules  thereby  laid  down  were  in  fact  observed  by  both  bel- 
ligerents. It  is  quite  possible  that  some  of  the  recommendations  recorded 
at  the  Peace  Conference  at  the  Hague  in  1899,  may  sooner  or  later,  in  like 
manner,  be  adopted  as  part  of  the  public  law  of  civilized  nations  by  general 
recognition  without  any  formal  ratification."  Sir  Frederick  Pollock,  in 
Columbia  Law  Rev.,  II,  511,  512. 

7 


§  3]         CERTAIN  ASPECTS   OF   INTERNATIONAL  LAW 

the  rule  of  international  law.^  American  state  papers  have  from 
time  to  time  shed  much  light  because  they  have  embodied  the 
testimony  of  witnesses  zealous  for  the  truth  and  sensitive  to  in- 
justice. Notwithstanding  occasional  yieldings  to  the  temptation 
to  assert  in  diplomatic  discussions  pretensions  at  variance  with 
accepted  principle,  as  by  way  of  defense  of  conduct  denounced 
by  a  foreign  power,  the  United  States  has  throughout  its  expe- 
rience manifested  strongest  disposition  to  observe  and  inculcate 
respect  for  international  justice.  Its  Constitution,  its  statutory 
laws,  its  diplomatic  correspondence,  the  codifications  of  its  army 
and  navy,  as  well  as  the  decisions  of  its  courts,  afford  abundant 
illustration.^  For  that  reason  the  views  of  American  statesmen 
have  been  heeded  by  the  outside  world  and  still  exert  a  corre- 
sponding influence.  The  testimony  borne  by  the  United  States 
deserves  scrutiny  because  it  has  proved  worthy  of  accepta- 
tion. 

The  decisions  of  local  tribunals  oftentimes  afford  evidence  of 
international  law.  Those  of  American  courts,  both  Federal  and 
State,  abound  in  opinions  manifesting  a  careful  and  impartial 
effort  to  enunciate  the  principles  observed  by  civilized  States. 
The  decisions  of  the  prize  courts  of  a  belligerent  are  oftentimes 
commended  as  entitled  to  special  authority  because  of  the  func- 
tion of  such  tribunals  to  determine,  according  to  the  requirements 
of  international  law,  the  propriety  of  acts  of  capture  and  others 

1  It  is  not  suggested  that  interpretations  of  international  law  given  by  those 
responsible  for  the  conduct  of  the  foreign  relations  of  the  United  States  are 
invariably  sound,  or  ever  above  criticism  when  shown  to  be  at  variance  with 
the  principles  generally  obtaining  among  enlightened  States.  Such  interpreta- 
tions, whether  sound  or  unsound,  deserve  close  attention  because,  with  respect 
to  the  principle  or  rule  involved,  they  are,  in  a  sense,  the  views  of  the  nation, 
and  as  such  attain  larger  international  significance  than  those  expressed  un- 
officially by  private  individuals,  at  least  as  evidence  of  requirements  recognized 
in  fact  by  the  society  of  nations.  In  a  word,  if  the  propriety  of  national  con- 
duct is  to  be  tested  according  to  principles  and  rules  which  States  observe  in 
practice  from  a  sense  of  legal  obligation,  the  views  of  the  Department  of  State 
as  to  the  requirements  of  that  practice  are  believed  to  be  entitled  to  great 
respect,  and  to  closer  consideration  than  the  utterances  of  writers  whose  pur- 
pose is  rather  to  emphasize  what,  in  their  judgment,  and  regardless  of  current 
practice,  the  law  of  nations  ought  to  be. 

2  "  Founded  upon  the  idea  of  law,  and  existing  under  the  protection  of  law, 
the  United  States  of  America,  more  perhaps  than  any  other  sovereign  power, 
has  aimed  to  establish  its  relations  with  other  governments  on  the  basis  of 
law ;  and  has  instinctively  shrunk  from  extending  them,  even  when  provoked 
by  the  turbulence  and  insolence  of  comparatively  impotent  neighbors,  on  a 
basis  of  preponderant  power.  In  all  the  international  councils  in  which  we 
have  as  a  nation  hitherto  participated,  our  government  has  endeavored  to 
establish  law  as  a  standard  for  the  conduct  of  sovereign  states.  Being  itself 
a  creation  of  law,  it  has  appeared  natural  to  base  its  foreign  relations  upon  it." 
David  Jayne  Hill,  "The  Nations  and  the  Law",  Reports  of  American  Bar 
Association,  1919,  XLIV,  171,  179. 

8 


ABSENCE   OF  A   LEGAL  SANCTION  [§  4 

incidental  thereto.^  It  has  been  found,  however,  that  even  when 
not  restrained  by  the  tenor  of  local  statutory  or  other  regulations, 
the  natural  prejudices  of  the  most  enlightened  and  scrupulous 
tribunal  established  under  belligerent  authority  tend  to  weaken 
its  impartiality  and  to  diminish  foreign  respect  for  its  conclusions.^ 
Awards  of  international  tribunals  such  as  courts  of  arbitration 
possessed  of  a  neutral  empire  (if  not  of  entire  neutral  membership) 
afford  impressive  evidence  of  the  requirements  of  international 
law.  The  impartiality  and  acumen  revealed  by  the  neutral  mem- 
bers of  such  bodies  have  oftentimes  been  productive  of  decisions 
entitled  to  great  respect  by  States  generally.  This  has  been 
notably  true  in  the  case  of  the  awards  of  the  Court  of  Arbitration 
organized  in  pursuance  of  the  Hague  Conventions  of  1899  and 
1907.^  Those  to  be  rendered  by  the  Permanent  Court  of  Inter- 
national Justice  (of  which  the  establishment  is  anticipated  at  an 
early  date)  ^vdll  doubtless  serve  from  time  to  time  increasingly 
to  bear  testimony  of  the  highest  order  as  to  what  the  law  of 
nations  really  is.^ 

§  4.   Absence  of  a  Legal  Sanction. 

The  domestic  laws  of  a  State  are  commonly  enforced  by  the 
territorial  sovereign.  There  is  a  sanction  which,  although  not 
essential  to  the  existence  of  the  law,  is  of  a  strictly  legal  character, 
inasmuch  as  it  is  established  and  applied  by  the  lawgiver,  and 
because  in  theor}^  it  is  enforced  only  when  a  legal  duty  has  been 
violated,  and  with  close  regard  for  the  extent  of  the  harm  publicly 
or  privately  sustained. 

With  respect  to  international  law  the  situation  is  otherwise. 
Doubtless  the  society  of  civilized  States  approves  of  the  enforce- 
ment of  the  rules  of  that  law  by  appropriate  means,  and  by  various 
processes.  It  does  not,  however,  as  yet  prescribe  the  procedure 
to  be  followed  by  an  aggrieved  State,  nor  even  enjoin,  under  cer- 
tain conditions,  recourse  to  war.     Powerful  forces,  nevertheless, 

1  Dana's  Wheaton,  Dana's  Note  No.  11.  In  this  connection,  see  judgment 
by  Lord  Parker  of  Waddington  in  The  Zamora  [1916],  2  A.  C.  77;  4  Lloyd's 
Prize  Cases,  84. 

2  See  Discussion  between  United  States  and  Great  Britain  during  The  World 
War,  §§  894-895. 

3  See,  for  example,  the  award  in  the  Pious  Fund  Case  between  the  United 
States  and  Mexico,  Oct.  14,  1902,  For.  Rel.  1902,  Appendix  II,  15;  J.  B. 
Scott,  Hague  Court  Reports,  3;  also  award  in  the  North  Atlantic  Coast 
Fisheries  Arbitration  between  the  United  States  and  Great  Britain,  Sept.  7, 
1910,  Proceedings,  North  Atlantic  Coast  Fisheries  Arbitration,  Senate  Doc. 
No.  870,  61  Cong.,  3  Sess.,  I,  103;   J.  B.  Scott,  Hague  Court  Reports,  146. 

"  See  Permanent  Court  of  International  Justice  Designed  by  Advisory 
Committee  of  Jurists,  1920,  infra,  §§  573-576. 

9 


§  4]         CERTAIN  ASPECTS  OF  INTERNATIONAL  LAW 

unceasingly  operate  to  produce  respect  for  international  law. 
There  is,  as  Mr.  Elihu  Root  has  pointed  out,  "  an  indefinite  and 
almost  mysterious  influence  exercised  by  the  general  opinion  of  the 
world  "  regarding  the  character  and  conduct  of  every  State. 
"  The  greatest  and  strongest  governments  recognize  this  influ- 
ence and  act  with  reference  to  it ;  they  dread  the  moral  isolation 
that  accompanies  it  and  they  desire  general  approval  and  the 
kindly  feeling  that  goes  with  it."  ^  Again,  the  fear  of  war  also 
serves  frequently  to  restrain  States  from  violating  international 
obligations.  A  weak  State,  however  strongly  inclined  to  disre- 
gard a  legal  duty  with  respect  to  a  powerful  neighbor,  is  reluctant 
to  test  its  strength  on  unequal  terms  with  such  an  adversary. 
Nevertheless,  it  should  be  observed  that  a  weak  State  may,  on 
the  other  hand,  anticipate  with  certainty  that  its  adherence  to  a 
la^vful  and  commendable  course  which  opposes  the  designs  of  an 
unscrupulous  and  stronger  State  will  invite  attack  upon  its  own 
domain.^  Thus  if  war  ensues  because  of  the  breach  of  international 
law,  or  because  of  fidelity  to  the  principles  of  that  law,  the  conse- 
quences may  prove  to  be  in  fact  identical.  For  that  reason  the 
fear  of  war,  which  may  serve  in  a  particular  case  to  encourage 
disregard  of  an  international  duty  as  well  as  respect  for  it,  is  not 
to  be  deemed  a  sanction  possessed  of  a  legal  character.^ 

Although  without  what  may  fairly  be  described  as  a  legal  sanc- 
tion, the  principles  and  rules  governing  the  conduct  of  States  do 
not  lack  the  quality  of  law.     It  is  no  longer  seriously  maintained 

1  "The  Sanction  of  International  Law",  Proceedings,  American  Soc.  Int. 
Law,  II,  14,  19-20,  where  it  is  added  :  "  The  real  sanction  which  enforces  those 
rules  is  the  injury  which  inevitably  follows  nonconformity  to  public  opinion; 
while,  for  the  occasional  and  violent  or  persistent  lawbreaker,  there  always 
stands  behind  discussion  the  ultimate  possibility  of  war,  as  the  sheriff  and  the 
policeman  await  the  occasional  and  comparatively  rare  violators  of  municipal 
law." 

2  Belgium  was  confronted  with  such  a  difficulty  in  1914.  It  was  given  sharp 
warning  that  attempts  to  maintain  the  inviolability  of  its  territory  against 
Germany  would  subject  that  territory  to  the  fuU  opposition  of  German  bel- 
ligerent force. 

3  It  is  not  suggested  that  the  fear  of  war  is  as  strong  or  frequent  an  incentive 
to  violations  of  international  law  as  to  acts  in  pursuance  thereof.  It  seems 
necessary  to  observe,  however,  that  the  fear  of  measures  which  may  be  under- 
taken to  thwart  lawful  as  well  as  unlawful  conduct,  and  by  a  State  controlled 
by  conscienceless  rulers,  with  an  unjust  purpose,  cannot  be  regarded  as  an 
agency  of  the  law  designed  to  enforce  respect  for  its  precepts. 

"The  sanction  of  public  opinion,  if  such  there  be,  attaches  equally  to 
principles  of  purely  moral  obligation;  to  identify  such  a  sanction  with  the 
sanction  of  law  is  to  sacrifice  the  distinction  between  positive  law  and  ideal 
morality.  War  as  a  sanction  is  analogous  to  the  act  of  an  individual  in  a  com- 
munitv  in  enforcing  his  rights  bv  brute  force."  Note,  Harvard  Law  Rev., 
XVIli,  476. 

See  also  Bonfils-Fauchille,  7  ed.,  §  29;  Pradier-Fod^r^,  I,  §  23,  p.  77. 

10 


RELATION  TO  EACH   STATE  AS  THE   LAW  THEREOF     [§  5 

that  the  existence  of  law  is  necessarily  dependent  upon  the  pres- 
ence of  a  power  to  enforce  it.^  Nor  have  enhghtened  States  in 
the  course  of  their  practice  been  disposed  to  take  such  a  view.^ 

Acknowledgment  that  the  welfare  of  the  international  society 
is  jeopardized  by  the  absence  of  an  appropriate  means  of  enforcing 
its  collective  will  against  a  member  which  is  contemptuous  of  its 
duties,^  involves  no  admission  that,  until  a  strictly  legal  sanction 
is  devised  and  in  fact  generally  accepted  for  common  application, 
the  principles  of  international  law  are  entitled  to  less  respect 
than  is  accorded  the  domestic  statutes  of  a  single  State.^  It  is 
a  cheering  and  certain  token  of  the  advance  of  civilization  that 
countries  which  long  remain  indisposed  or  impotent  to  observe 
as  legal  duties  the  common  obligations  which  international  law 
is  acknowledged  to  impose  upon  the  entire  membership  of  the 
family  of  nations,  are  regarded  by  enlightened  powers  with  in- 
creasing intolerance,  and  as  unfit  for  the  acquisition  or  retention 
of  normal  privileges  of  independent  statehood. 

§  5.   Relation  to  Each  State  as  the  Law  Thereof. 

If  there  exists  a  body  of  international  law  which  States,  from 
a  sense  of  legal  obligation,  do  in  fact  observe  in  their  relations 
with  each  other,  and  which  they  are  unable  individually  to 
alter  or  destroy,  that  law  must  necessarily  be  regarded  as  the  law 
of  each  political  entity  deemed  to  be  a  State,  and  as  prevailing 
throughout  places  under  its  control.  This  is  true  although  there 
be  no  local  affirmative  action  indicating  the  adoption  by  the  in- 
dividual State  of  international  law;  for  the  processes  by  which 
general  acquiescence  in  its  principles  has  been  effected  manifest 

1  Bonfils-Fauchille,  7  ed.,  §  29;  Rivier,  §  3,  Vol.  I,  p.  21. 
See,  also,  J.  B.  Scott,  "The  Legal  Nature  of  International  Law",  Am.  J., 
I,  831. 

*  "The  general  opinion  of  States  approves  certain  rules,  not  as  expressing 
conduct  to  be  recommended  without  being  enforced,  like  telling  the  truth  or 
being  charitable,  but  to  be  enforced  by  such  means  as  exist. 

"  The  conduct  directed  by  those  rules  is  in  fact  generally  observed  by  States 
and  that,  not  as  freely  choosing  it  in  each  instance,  but  as  obeying  the  rules ; 
not  necessarily  from  fear  of  enforcement,  but  at  least  from  the  persuasion  that 
the  rules  are  law."     Westlake,  2  ed.,  I,  7. 

3  The  Covenant  of  the  League  of  Nations  expresses  agreement  to  apply  a 
sanction  of  a  legal  character  against  members  of  the  League  which  disregard 
certain  specified  undertakings  with  reference  to  the  adjustment  of  disputes 
by  amicable  means. 

*  With  or  without  the  instrumentality  of  the  League  of  Nations,  or  the 
processes  developed  in  the  Covenant  thereof,  the  society  of  nations  appears 
to  be  no  longer  disposed  to  leave  merely  to  the  mercies  of  an  aggrieved  State, 
whether  strong  or  weak,  and  to  the  application  of  penalties  of  its  own  devising, 
the  international  law-breaker  whose  offense  is  deemed  to  have  attained  the 
character  of  an  international  felony. 

11 


§  5]         CERTAIN  ASPECTS  OF  INTERNATIONAL  LAW 

the  requisite  irrevocable  assent  of  each  member  of  the  society  of 
nations. 

International  law,  as  the  local  law  of  each  State,  is  necessarily 
superior  to  any  administrative  regulation  or  statute  or  public  act 
at  variance  with  it.  There  can  be  no  conflict  on  an  equal  plane. 
The  precise  relationship  of  a  recognized  rule  of  international  law 
to  a  local  statute  in  contravention  thereof  is  oftentimes  obscured 
by  occurrences  which  take  place  before  the  superiority  of  the 
former  is  ultimately  established.  A  local  court  may  be  obliged, 
on  account  of  the  nature  and  the  limits  of  the  powers  conferred 
upon  it,  to  enforce  the  statute ;  and  even  a  domestic  tribunal  of 
last  resort  may  be  compelled  to  affirm  such  action.  This  merely 
signifies  that  no  local  forum  is  possessed  of  jurisdiction  to  pass 
upon  the  propriety  of  the  conduct  of  the  State  in  enacting  the  law ; 
it  does  not  imply  that  that  conduct  is  international!}'  defensible, 
or  that  the  judges  approve  of  it.  Moreover,  the  finality  of  the 
local  adjudication  does  not  indicate  that  the  conflict  has  passed 
through  more  than  a  preliminary  stage.  If  the  controversy  is 
pressed  further,  through  the  diplomatic  channel,  the  State  whose 
enactment  is  denounced  by  another  as  at  variance  with  interna- 
tional law  may  in  fact  deny  the  truth  of  the  allegation.  It  can- 
not, however,  admit  the  charge  without  acknowledging  responsi- 
bility to  make  reparation.  If  disagreement  as  to  the  nature  of 
the  statute  or  the  extent  of  the  harm  produced  by  it  proves  in- 
capable of  adjustment  by  negotiation,  and  the  issue  be  referred 
to  an  international  court  of  arbitration  clothed  with  requisite 
jurisdiction,  it  will  denounce  the  statute  (if  deemed  to  violate  in- 
ternational law)  and  formulate  its  award  accordingly.  Observ- 
ance of  the  award  by  the  delinquent  State  (possibly  entailing 
amendatory  legislation)  will  terminate  the  conflict  and  establish 
the  supremacy  of  the  international  obligation.^ 

It  is  important  to  observe,  however,  that  States  are  not  com- 
monly disposed  to  defy  by  local  statute  recognized  duties  of  inter- 
national law,  and  that  they  are  instinctively  reluctant  to  admit 
that   domestic   enactments   manifest   such   a  purpose.     Contro- 

1  It  is  this  absence  of  a  local  court  possessed  of  requisite  jurisdiction  which 
is  productive  of  confusion  of  thought.  Difficulty  has  been  encountered  in 
perceiving  how  an  international  duty,  contractual  or  otherwise,  which  cannot 
be  locally  enforced  in  a  domestic  forum  is  the  local  law.  The  fact  is  that  the 
duty  is  locally  enforced  when  the  controversy  is  pressed  to  a  conclusion  re- 
sulting in  an  international  adjudication,  and  in  an  award  which  is  respected 
by  the  delinquent  State. 

Cf.  The  Ship  Rose  v.  The  United  States,  36  Ct.  CI.  290,  301,  where  a  tribunal 
in  the  United  States  was  clothed  with  the  requisite  jurisdiction. 

12 


RELATION  TO   EACH  STATE   AS  THE   LAW  THEREOF     [§  5 

versies  of  such  a  character,  although  oftentimes  recurring,  are  not 
sufficiently  frequent  in  times  of  peace  to  manifest  a  condition  of 
habitual  conflict  between  international  obligations  and  local  enact- 
ments. Normally,  it  is  taken  for  granted  that  international  law 
prevails  in  the  domain  of  an  enlightened  State  and  will  be  respected 
in  all  the  activities  of  its  several  agencies.  This  is  notably  true 
in  the  United  States.^  Its  tribunals,  and  in  particular  the  Supreme 
Court,  are  reluctant  to  impute  to  the  Congress  or  the  Executive 
an  intention  to  violate  the  law  of  nations,  construing  enactments 
as  contemplating  observance  thereof."  Moreover  those  tribunals, 
when  unrestricted  by  statutory  limitations,  apply  and  enforce 
the  principles  of  international  law  as  those  constituting  the  law 
of  the  land.' 

1  See,  for  example,  Art.  I,  Section  8,  of  the  Constitution  conferring  on  the 
Congress  power  "To  define  and  punish  Piracies  and  Felonies  committed  on  the 
high  Seas,  and  Offences  against  the  Law  of  Xations."  Other  paragraphs  and 
sections  contemplate  acts  by  various  departments  of  the  Government,  execu- 
tive, legislative  and  judicial,  pertaining  to  the  foreign  relations  of  the  nation, 
and  contemplating  by  implication,  respect  for  international  law.  This  is 
manifest,  for  example,  in  the  provisions  of  Art.  Ill,  Section  2,  with  respect  to 
the  lodgment  and  exercise  of  the  judicial  power  of  the  nation,  and  in  those  of 
Art.  II,  Section  2,  with  respect  to  the  treaty-making  power. 

See  Cyril  M.  Picciotto,  The  Relation  of  International  Law  to  the  Law  of  Eng- 
land and  of  the  United  States  of  America,  New  York,  191.5 ;  W.  W.  Willoughby, 
"The  Legal  Nature  of  International  Law",  Am.  J.,  II,  .357;  T.  E.  Holland, 
Studies  in  International  Law,  Oxford,  1898,  Chap.  X.;  John  Westlake,  "Is 
International  Law  a  Part  of  the  Law  of  England?"  Law  Quar.  Rev.,  XXII,  14. 

2  Marshall,  C.  J.,  in  the  case  of  The  Charming  Betsy,  2  Cranch,  64,  118; 
opinion  of  Mr.  Justice  Dav  in  MacLeod  v.  United  States,  229  U.  S.  416,  434. 

3  Declared  Mr.  Justice  Gray,  in  The  Paquete  Habana,  175  U.  S.  677,  700: 
"International  law  is  part  of  our  law,  and  must  be  ascertained  and  adminis- 
tered by  the  courts  of  justice  of  appropriate  jurisdiction,  as  often  as  questions 
of  right  depending  upon  it  are  duly  presented  for  their  determination.  For 
this  purpose,  where  there  is  no  treaty,  and  no  controlling  executive  or  legisla- 
tive act  or  judicial  decision,  resort  must  be  had  to  the  customs  and  usages  of 
civilized  nations." 

See  Marshall,  C.  J.,  in  The  Nereide,  9  Cranch,  388,  423  ;  also.  The  Steam- 
ship Appam,  243  U.  S.  124. 

§  9,  Chap.  20  of  the  Act  of  Sept.  24,  1789,  1  Stat.  77,  declared  that  the  dis- 
trict courts  of  the  United  States  should  have  "cognizance,  concurrent  with  the 
courts  of  the  several  States,  or  the  circuit  courts,  as  the  case  may  be,  of  all 
causes  where  an  alien  sues  for  a  tort  onlv  in  violation  of  the  law  of  nations  or  a 
treatv  of  the  United  States."  §  24,  Paragraph  17,  Chap.  231,  of  the  Act  of 
March  3,  1911,  36  Stat.  1093,  gave  to  the  district  courts  original  jurisdiction 
in  such  cases. 

See  Philip  Quincv  Wright,  The  Enforcement  of  International  Law  through 
Municipal  Law  in  "the  United  States,  1915,  227;  Simeon  E.  Baldwin,  "The 
Part  Taken  bv  Courts  of  Justice  in  the  Development  of  International  Law", 
Int.  Law  Association,  15th  Report,  35 ;  Evans,  Cases,  18,  Note,  and  cases  there 
cited. 


13 


PAET    I 

STATES.     THEIR   CLASSIFICATION 

TITLE   A 

SUBJECTS  OF  INTERNATIONAL  LAW 

1 
STATES 


§  6.   Significance  of  the  Term  in  International  Law. 

It  is  necessary  to  observe  what  are  the  political  entities  described 
as  States  which  are  deemed  to  constitute  the  members  of  the 
family  of  nations  and  to  be  governed  as  such  in  their  relations 
with  each  other  by  the  principles  of  international  law.  Great 
Britain  and  Illinois  are  each  doubtless  properly  designated  as 
a  State,  although  the  latter,  while  subject  to  the  operation  of 
those  principles,  is  not  itself  a  person  of  international  law.  If 
the  term  State  is  fairly  descriptive  of  political  bodies  such  as  the 
several  commonwealths  of  the  United  States,  the  States  which 
enjoy  membership  in  the  international  society  and  which  are 
recognized  by  it  as  persons  of  international  law  are  confined  to 
those  which  possess  certain  well-defined  qualifications,  and  which 
comprise  a  relatively  small  number  of  those  which  are  given  the 
same  appellation.^  Thus  any  definition  of  the  term  State  in  its 
generic  sense  must  fail,  because  of  its  very  breadth,  to  point  out 
the  distinctive  elements  which  characterize  every  political  entity 
deemed  to  be  a  subject  or  person  of  international  law.^ 

^  Westlake  2  ed    I   1—5 

2  Thus  Mr.'  Justice  Miller,  in  Keith  v.  Clark,  97  U.  S.  454,  459-463,  in  re- 
ferring to  the  status  of  Tennessee  during  the  Civil  War,  was  concerned  merely 
with  the  problem  of  describing  the  nature  of  a  State  of  the  Union  rather  than 
a  State  of  international  law.     See,  also,  Texas  v.  White,  7  Wall.  700,  720-721. 

"Most  of  the  definitions  of  the  publicists  may,  however,  be  traced  back, 
in  substance  if  not  in  form,  to  Cicero,  who,  in  his  De  Republica,  defines  the 

15 


§  7]  SUBJECTS  OF  INTERNATIONAL  LAW 


§  7.   Requisites  of  a  State  of  International  Law, 

A  State  or  person  of  international  law  must,  according  to  en- 
lightened practice,  possess  the  following  qualifications : 

First,  there  must  be  a  people.  According  to  Rivier,  it  must 
be  sufficient  in  numbers  to  maintain  and  perpetuate  itself.  This 
requirement  could  not,  he  declares,  be  met  by  a  casual  gathering 
of  individuals  or  by  a  chance  group  of  bandits  or  by  a  society  of 
pirates.^ 

Secondly,  there  must  be  a  fixed  territory  which  the  inhabitants 
occupy.  Nomadic  tribes  or  peoples  are  thus  excluded  from  con- 
sideration.^ 

Thirdly,  there  must  be  an  organized  government  expressive 
of  the  sovereign  will  within  the  territory,  and  exercising  in  fact 
supremacy  therein.^ 

Fourthly,  there  must  be  an  assertion  of  right  through  govern- 
mental agencies  to  enter  into  relations  w^ith  the  outside  world. 
The  exercise  of  this  right  need  not  be  free  from  external  restraint. 
Independence  is  not  essential."*  It  is  the  possession  and  use  of 
the  right  to  enter  into  foreign  relations,  whether  w4th  or  without 
restriction,  which  distinguishes  States  of  international  law  from  the 

'populus'  as  a  numerous  society  united  by  a  common  sense  of  right  and  a 
mutual  participation  in  advantages.  In  almost  the  same  words  Grotius  de- 
fined the  state  (ciiritas)  as  a  perfect  society  of  free  men,  united  for  the  pro- 
motion of  right  and  the  common  advantage.  Pufendorf  propounded  the  idea, 
which  has  been  so  generahy  adopted,  of  treating  the  state  as  a  moral  person, 
endowed  with  a  collective  will.  According  to  Vattel,  a  nation  or  state  is  a 
body  politic  or  society  of  men  who  seek  their  well-being  and  common  ad- 
vantage in  the  combination  of  their  forces.  This  definition  is  substantially 
adopted  by  Wheaton.  But  it  must  be  admitted  that  all  the  foregoing  defini- 
tions are  imperfect,  and  that  they  can  be  accepted  only  with  certain  limita- 
tions."    Moore,  Dig.,  I,  14. 

Cf.  Dana's  Wheaton,  §  17. 

1  Rivier,  I,  46.  For  an  abstract  of  the  views  of  this  author  see  Moore,  Dig., 
I,  16-17,  18.     See,  also,  Bonfils-Fauchille,  7  ed.,  §  162. 

^  Rivier,  supra;  also  Phillimore,  2  ed.,  I,  81. 

3  Phillimore,  supra;  Bonfils-Fauchille,  supra ;  Hall,  Higgins'  7  ed.,  §  1. 

*  "  It  is  not  necessary  for  a  State  to  be  independent  in  order  to  be  a  State  of 
international  law."     Westlake,  2  ed.,  I,  21. 

"As  international  law  deals  with  actual  conditions,  it  recognizes  the  fact 
that  there  are  states  not  in  all  respects  independent  that  maintain  international 
relations,  to  a  greater  or  less  extent,  according  to  the  degree  of  their  depend- 
ence."    Moore,  Dig.,  I,  18,  citing  Rivier,  I,  52. 

If  independence  be  regarded  as  a  necessary  possession  of  a  State  of  inter- 
national law,  the  existing  practice  of  treating  as  persons  or  subjects  of  that 
law  various  types  of  so-called  dependent  States  is  incapable  of  explanation. 
Even  those  who  assert  that  independence  is  a  necessary  attribute  of  a  State, 
are  frequently  unwilling  to  employ  the  term  "State"  to  designate  what  they 
believe  that  it  fairly  signifies,  and  are  impelled  to  utilize  the  adjective  "inde- 
pendent" or  "sovereign"  in  order  to  make  clear  their  meaning. 

16 


AMERICAN  COMMONWEALTHS.     COLONIES  [§  8 

larger  number  of  political  entities  given  that  name  and  which  are 
wholly  lacking  in  such  a  privilege.  It  illustrates  the  difference  be- 
tween Ecuador  and  Alaska,  and  between  Cuba  and  South  Carolina. 
Fifthly,  the  inhabitants  of  the  territory  must  have  attained  a  de- 
gree of  civilization  such  as  to  enable  them  to  observe  with  respect 
to  the  outside  world  those  principles  of  law  which  by  common 
assent  govern  the  members  of  the  international  society  in  their 
relations  with  each  other.^ 

c 
Excluded  Associations  or  Entities 

(1) 
§  8.   American  Commonwealths.    Colonies.    Corporations. 

Political  entities  failing  to  meet  any  of  the  requirements  above 
noted  are  regarded  as  incapable  of  treatment  as  persons  of  inter- 
national law.  Thus,  as  has  been  observed,  the  several  States  of 
the  United  States,  by  reason  of  their  inability  to  enter  into  diplo- 
matic relations  with  the  outside  world,  lack  the  requisite  capacity.^ 
Such  is  the  situation  also  of  a  colony  or  other  possession  likewise 
under  such  a  disability,  and  that  regardless  of  the  autonomy 
which  it  may  enjoy  in  respect  to  domestic  affairs.  Thus,  for 
example,  the  Philippine  Islands  and  Porto  Rico,  as  well  as  Alaska, 
are  not  States  of  international  law. 

When,  however,  an  autonomous  colony  such  as  a  self-governing 
dominion  is  permitted  by  its  sovereign  to  hold  direct  intercourse 
with  the  outside  world,  it  thereby  attains  an  international  person- 
ality, with  the  capacity  requisite  for  a  certain  form  of  membership 
in  the  soaety  of  States,  and  thereupon  appears  to  acquire  a  status 
difficult  to  distinguish  from  that  possessed  by  what  are  known 
as  dependent  States.^ 

^  See  Countries  not  Possessed  of  European  Civilization,  infra,  §  33. 

^  International  responsibility  for  what  may  occur  in  the  territory  of  each 
is  lodged  in  the  State  of  international  law  —  the  United  States  —  of  which 
each  is  a  part,  and  to  which  each,  in  an  international  sense,  belongs. 

'  The  participation  of  the  Dominion  of  Canada,  the  Commonwealth  of 
Australia,  the  Union  of  South  Africa,  the  Dominion  of  New  Zealand  and  India 
in  the  Peace  Conference  of  1919,  the  signing  of  the  Treaty  of  Versaille-^  with 
Germany,  of  June  28,  1919,  by  representatives  of  each  in  behalf  of  tlieir  re- 
spective portions  of  the  British  Empire,  and  their  acceptance  as  original 
members  of  the  League  of  Nations,  must  be  taken  to  signify  that,  with  the  con- 
sent of  Great  Britain,  each  of  these  self-governing  dominions  has  attained  an 
international  personality,  and  is  to  be  dealt  with  accordingly.  It  would  be 
consistent  with  the  status  which  each  has  acquired  should  any  one  of  them, 
such  as  Canada,  be  accorded  the  right  to  maintain  permanent  diplomatic 
relations  with  a  neighboring  State. 

17 


§  8]  SUBJECTS  OF  INTERNATIONAL  LAW 

Great  corporations,  such  as  the  East  India  Company,  or  the 
Hudson's  Bay  Company,  or  the  Russian-American  Company, 
notwithstanding  the  scope  of  the  political  and  other  powers  dele- 
gated to  them,  have  also  necessarily  been  excluded  from  the  cate- 
gory of  States  of  international  law.^ 


(2) 

§  9.   Religious  Societies.     The  Pope. 

Religious  societies,  such  as  the  Holy  See,  are  not  regarded  as 
States  of  international  law,  save  when  circumstances  combine 
to  enable  them  to  satisfy  all  of  the  conditions  of  statehood  which 
have  been  noted. 

The  position  of  the  Pope  since  the  days  when  he  was  a  terri- 
torial sovereign  has  been  anomalous.^  As  the  head  of  the  Roman 
Catholic  Church  to  which  certain  States  officially  avow  attach- 
ment, he  possesses  international  political  significance  and  wields 
international  power. ^  He  holds  diplomatic  intercourse  with  va- 
rious States  through  the  medium  of  repesentatives  whom  he  both 
accredits  and  receives.^  i\.s  head  of  the  Church  he  concludes 
with  certain  States  arrangements  known  as  concordats,  and  which 
pertain  to  ecclesiastical  matters.'^  By  reason  of  its  institutions 
which  divorce  political  from  religious  matters,  the  United  States 

^  See,  in  this  connection,  Dana's  Wheaton,  §  17,  where  it  is  said:  "Thus 
the  great  association  of  British  merchants  incorporated,  first,  by  the  crown, 
and  afterwards  by  ParHament,  for  the  purpose  of  carrying  on  trade  to  the 
East  Indies,  could  not  be  considered  as  a  State,  even  whilst  it  exercised  the 
sovereign  powers  of  war  and  peace  in  that  quarter  of  the  globe,  without  the 
direct  control  of  the  crown,  and  still  less  can  it  be  so  considered  since  it  has 
been  subjected  to  that  control."  See,  also,  Westlake,  Collected  Papers, 
Chap.  X. 

2  Concerning  the  Italian  law  of  guaranties  of  May  13,  1871,  see  Bonfils- 
Fauchille,  7  ed.,  §§  377-385;  also  id.,  §§  386-396,  concerning  diplomatic  re- 
lations of  the  Papacy,  and  the  international  personality  of  the  Pope;  also 
extensive  bibliography,  id.,  §  370.  See,  also,  Oppenheim,  2  ed.,  I,  Chap.  X; 
Clunet,  Tables  Generdles,  I,  440,  443,  873. 

^  It  should  be  observed,  however,  in  this  connection  that  the  Pope  was  not 
permitted  to  participate  in  the  First  Hague  Peace  Conference  of  1899,  and 
was  not  a  participant  in  that  of  1907. 

It  will  be  recalled  that  in  1917,  the  Pope  urged  the  opposing  groups  of  bel- 
ligerents to  make  an  endeavor  to  negotiate  peace.  See  Am.  J.,  XI,  Supp.,  212; 
also  reply  of  the  United  States,  id.,  216. 

*  With  respect  to  the  privileged  rank  of  papal  nuncios,  see  Arts.  I,  II,  and 
IV  of  Rules  of  the  Congress  of  Vienna  of  March  9,  1815,  Instructions  to  the 
Diplomatic  Officers  of  the  United  States  (1897),  §  18. 

*  "In  our  day,  this  term  [concordats]  is  applied  to  conventions  concluded 
between  the  Holy  Apostolic  See  and  the  governments  of  certain  States  whose 
population,  in  whole  or  in  part,  is  Catholic,  and  not  in  regard  to  questions 
of  faith  or  dogma,  but  concerning  ecclesiastical  discipline,  organization  of  the 

18 


AMERICAN  INDIANS  [§  10 

has  been  deterred  from  maintaining  diplomatic  relations  with 
the  Vatican  since  the  loss  by  the  Pope  of  temporal  power. ^  The 
nature  of  his  relations  with  other  States  has  not  been  a  matter  of 
concern  to  the  United  States. 

(3) 
§  10.   American  Indians. 

The  American  Indians  have  never  been  regarded  as  constituting 
persons  or  States  of  international  law.  Chief  Justice  Marshall, 
in  1821,  thus  described  them  : 

They  may,  more  correctly,  perhaps,  be  denominated  domestic 
dependent  nations.  They  occupy  a  territory  to  which  we 
assert  a  title  independent  of  their  will,  which  must  take  effect 
in  point  of  possession,  when  their  right  of  possession  ceases. 
Meanwhile  they  are  in  a  state  of  pupilage.  .  .  .  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  our- 
selves, as  being  so  completely  under  the  sovereignty  and  do- 
minion of  the  United  States,  that  any  attempt  to  acquire  their 
lands,  or  to  form  a  political  connection  w'ith  them,  would  be 
considered  by  all  as  an  invasion  of  our  territory  and  an  act  of 
hostility.^ 

Foreign  States  are  not,  therefore,  concerned  with  the  domestic 
relationship  between  the  United  States  and  its  wards  inhabiting 
its  domain,^  and  which  is  governed  by  its  Constitution,  and  by 
American  treaties  and  laws  in  accordance  therewith."* 

clergy,  diocesan  circumscriptions,  the  nominations  of  bishops,  priests,  etc.  — 
The  conventions  concluded  with  Protestant  States  are  called  Bulls  of  circum- 
scription."    Bonfils-Fauchille,  7  ed.,  §  896. 

1  Mr.  Fish,  Secv.  of  State,  to  Mr.  Gushing,  Minister  to  Spain,  June  4,  1875, 
For.  Rel.  1875,  1119,  Moore,  Dig.,  I,  39;  Mr.  Bavard,  Secy,  of  State,  to  Mr. 
Dwyer,  Nov.  7,  1887,  For.  Rel.  1887,  642,  Moore,  Dig.,  I,  40. 

2  Cherokee  Nation  v.  Georgia,  5  Pet.  1,  17.  See,  also,  Holden  v.  Joy.  17 
Wall.  211;  Jones  v.  Meehan,  175  U.  S.  1,  10;  Mr.  Adams,  Secy,  of  State,  to 
Mr.  Dallas,  July  26,  1856,  MS.  Inst.  Great  Britain,  Moore,  Dig.,  I,  34-35. 

^  It  has  been  a  matter  of  concern,  however,  to  neighboring  States  that  the 
control  exercised  by  the  United  States  over  the  American  Indians  was  suf- 
ficient to  prevent  incursions  In*  them  into  the  territories  of  those  States. 
Moore,  Dig.,  II,  808-809,  and  documents  there  cited.  In  several  of  its  early 
treaties  with  foreign  States  the  United  States  agreed  to  provisions  with  re- 
spect to  the  Indians.  See,  for  example.  Art.  Ill  of  the  Jay  Treaty  of  Nov. 
19,  1794,  Malloy's  Treaties,  I,  592;  explanatorv  Article  thereof,  May  4, 
1796.  id.,  607;  Art.  IX  of  the  Treaty  of  Ghent  of  Dec.  24,  1814,  id.,  618; 
Art.  V  of  the  treaty  with  Spain  of  Oct.  27,  1795,  id.,  II,  1642;  Art.  VI  of  the 
treatv  with  France  of  April  30,  1803,  ici.,  I,  510;  Art.  XXXIII  of  treaty  with 
Mexico  of  April  5,  1831,  id.,  1095. 

*  See,  generally,  Moore,  Dig.,  I.  30-39,  and  documents  there  cited. 

19 


§  11]  SUBJECTS  OF  INTERNATIONAL  LAW 


THE   EQUALITY   OF   INDEPENDENT   STATES 

§11.    Observance  of  the  Principle. 

In  legal  contemplation  all  independent  States  are  regarded  as 
equal,  and  the  rights  of  each  not  deemed  to  be  dependent  upon 
the  possession  of  power  to  insure  their  enforcement.^  Such  States 
not  only  enjoy  equality  before  the  law,  a  possession  shared  also 
by  dependent  States,  but  also  are  entitled  to  claim,  at  least  under 
normal  circumstances  and  for  most  purposes,  what  has  been  tersely 
described  as  "equal  capacity"  for  legal  rights.^  The  nature  of  the 
condition  of  independent  States  and  the  singleness  of  their  class 
or  status  appear  to  justify  such  a  pretension.  American  states- 
men have  constantly  made  it.^  There  is,  moreover,  wide  ob- 
servance of  this  principle  by  the  international  society  notwith- 
standing the  circumstance  that  States  differ  widely  with  respect 
to  material  strength  and  political  influence,^  and  although  some 
possess  the  power  to  control  their  weaker  neighbors,  and  despite 
the  fact  that  a  certain  small  group  is  capable  of  enforcing  its  col- 
lective will  throughout  a  great  portion  of  the  world.  International 
law  is  concerned    with  the  habit  and  disposition  of  enlightened 

1  Declared  Chief  Justice  Marshall,  in  The  Antelope,  10  Wheat.  66,  122 : 
"No  principle  of  general  law  is  more  universally  acknowledged,  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have  equal  rights.  It  re- 
sults from  this  equality,  that  no  one  can  rightfully  impose  a  rule  on  an- 
other. Each  legislates  for  itself,  but  its  legislation  can  operate  on  itself 
alone.  A  right,  then,  which  is  vested  in  all,  by  the  consent  of  all,  can  be 
divested  only  by  consent;  and  this  trade  [the  slave  trade  with  Africa],  in 
which  all  have  participated,  must  remain  lawful  to  those  who  cannot  be  in- 
duced to  relinquish  it.  As  no  nation  can  prescribe  a  rule  for  others,  none  can 
make  a  law  of  nations ;  and  this  traffic  remains  lawful  to  those  whose  gov- 
ernments have  not  forbidden  it." 

2  Edwin  DeWitt  Dickinson,  The  Equality  of  States  in  International  Law, 
Cambridge,  1920,  3-5,  334-336. 

3  While  American  statesmen  have  not  always  expressed  with  exactness  the 
theories  of  State  equality  which  they  proclaimed,  their  utterances  appear  at 
times  to  have  recognized  the  principle  that  rights  of  equality  are  the  pecuUar 
possession  of  States  enjoying  alike  freedom  from  external  control. 

See  Mr.  Root,  Secy,  of  State,  address  before  Third  Conference  of  American 
Republics,  at  Rio  de  Janeiro,  July  31,  1906,  contained  in  Latin  America  and 
The  United  States :  Addresses  by  Elihu  Root,  collected  and  edited  by  Robert 
Bacon  and  James  Brown  Scott,  Cambridge,  1917,  3,  10. 

C/.  American  Institute  of  International  Law:  Declaration  of  the  Rights 
and  Duties  of  Nations  (with  official  commentary),  Washington,  1916;  J.  B. 
Scott,  The  American  Institute  of  International  Law :  Its  Declaration  of  the 
Rights  and  Duties  of  Nations,  Washington,  1916. 

*  See  Mr.  Olney,  Secy,  of  State,  to  Mr.  Bayard,  American  Ambassador  at 
London,  July  20,  1895,  with  reference  to  the  relation  of  the  United  States 
to  other  countries  of  the  American  continents.  For.  Rel.  1895,  I,  545,  558. 
See  infra,  §  91. 

20 


THE  EQUALITY  OF  INDEPENDENT  STATES  [§11 

States  to  refrain  from  uniting  for  lawless  ends,  and  with  the  evi- 
dence of  the  practice  tending  to  subordinate  the  exercise  of  power 
to  the  requirements  of  law.  It  is  the  restraints  which  from  a 
sense  of  legal  obligation  enlightened  States  have  endeavored  to 
observe,  and  for  which  also  they  have  by  various  processes  under- 
taken to  demand  general  respect,  which  establish  the  reality  of 
the  equality  of  independent  powers,  and  justify  constant  reference 
to  the  fact. 

Nevertheless,  the  influence  of  the  selfish  designs  of  individual 
States,  not  only  upon  the  attainment  of  political  ends,  but  also 
upon  the  formulation  of  legal  principle  must  not  be  ignored.^ 
Inasmuch  as  the  number  of  independent  States  is  large,  and  the 
interests  of  each  are  not  identical,  the  attempt  of  any  one  to  im- 
pose its  theories  upon  the  international  society  so  as  to  rob  its 
several  members  of  their  equal  rights  would  doubtless  fail.  Should, 
however,  a  group  of  powerful  States  unite  in  such  an  endeavor, 
success  might  reward  their  effort ;  and  if  it  did,  numerous  States 
which  were  previously  independent  would  find  themselves  re- 
duced to  a  condition  of  relative  subordination.  Whether,  there- 
fore, the  international  society  is  to  remain  a  body  composed  prin- 
cipally of  independent  States  enjoying  equal  rights,  rather  than 
become  transformed  into  an  organization  comprising  a  series  of 
groups  of  States  of  differing  rank  and  unequal  before  the  law, 
and  in  which  rights  of  independence  are  the  sole  possession  of  a 
few  powers  belonging  to  the  primary  group,  will  depend  upon 
whether  there  is  sufficient  inducement  to  create  the  necessary 
oneness  of  interest  among  those  States  which  actually  possess  the 
power  collectively  to  enforce  their  will.^ 

The  practice  of  nations  has  revealed  the  fact  that  a  State  can- 
not be  permitted  to  retain  its  independence  after  it  has  become 

^  "When  we  come  to  formulate  our  foreign  policies  upon  the  belief  that 
justice  in  the  abstract  is  a  dominant  force  in  the  regulation  of  world  affairs, 
we  are  building  on  a  foundation  which,  however  desirable,  is  by  no  means 
certain.  We  must  recognize  the  fact,  unpalatable  though  it  may  be,  tha,t 
nations  to-day  are  influenced  more  by  selfishness  than  by  an  altruistic  senti- 
ment of  justice.  The  time  may  come  when  the  nations  \vill  change  their 
present  attitude  throuh  a  realization  that  uniform  justice  in  foreign  as  well 
as  domestic  affairs  is  te  highest  type  of  expediency ;  but  that  time  has  not 
yet  come,  and,  if  we  are  wise,  we  will  not  deceive  ourselves  by  assuming  that 
the  policies  of  other  Governments  are  founded  on  unselfishness  or  on  a  constant 
purpose  to  be  just  even  though  the  consequences  be  contrary  to  their  immediate 
interests."  Robert  Lansing,  "Some  Legal  Problems  of  the  Peace  Confer- 
ence", Reports  of  American  Bar  Association,  1919,  XLIV,  238,  242-243. 

^  It  is  not  believed  that  the  United  States  would  acquiesce  in  any  arrange- 
ment which  contemplated  the  demotion  in  rank  of  an  enlightened  State  on 
account  of  the  narrow  limits  of  its  domain  or  the  relative  insignificance  of  its 
military  establishment. 

21 


§  11]  SUBJECTS  OF  INTERNATIONAL  LAW 

impotent  to  fulfill  the  responsibilities  incidental  to  its  status. 
When  it  has  sunk  to  such  a  condition,  it  forfeits  the  right  there- 
after to  claim  equality  of  treatment,  and  must  anticipate  in  con- 
sequence at  least  a  temporary  subordination  to  some  foreign 
power.^  It  is  perceived  that  the  maintenance  of  justice  is  of  greater 
concern  to  the  international  society  than  the  continued  inde- 
pendence of  any  member  thereof ;  and  justice  among  nations  is  ob- 
structed and  held  in  contempt  whenever  a  State  which  loses  its 
capacity  or  disposition  to  perform  its  common  duties  towards  the 
outside  world  is  long  permitted  to  continue  its  existence  without 
external  restraint.  This  principle  is  believed  to  be  relentless  in 
its  operation. 

1  The  establishment  of  a  guardianship  for  such  a  State  does  not  signify 
opposition  to  its  interests,  but  rather  an  attempt  to  protect  and  preserve  it 
for  its  own  good  as  well  as  that  of  the  international  society,  and  with  a  view 
also  to  its  ultimate  restoration  to  a  normal  condition  such  as  to  justify  its 
claim  to  the  right  to  resume  independence. 


22 


TITLE    B 

CLASSIFICATION  OF  STATES  OF  INTERNATIONAL 

LAW 

1 

STATES   IN   RELATION   TO   THEIR   FREEDOM   FROM 
EXTERNAL   CONTROL 

a 

§  12.   In  General. 

The  chief  concern  of  the  international  society  respecting  the 
character  of  a  person  or  State  of  international  law  pertains  to  the 
degree  of  freedom  from  external  control  with  which  it  conducts 
its  foreign  relations.  Of  less  consequence  is  the  method  by  which 
such  a  person  or  State  came  into  being,  or  the  cause  which  was 
productive  of  it,  or  the  nature  of  its  structure.  To  the  family 
of  nations  whatever  circumstances  serve  to  deny  to  one  of  its 
members  the  right  to  deal  as  it  may  see  fit  with  the  outside 
world,  or  to  exercise  in  other  ways  such  rights  of  political  inde- 
pendence as  are  the  common  possession  of  its  freest  members, 
must,  however,  remain  a  matter  of  importance.^ 

b 

§  13.   Independent  States. 

A  State  is  independent  when  it  is  free  from  the  control  of  any 
other  State  or  States  in  the  management  of  its  domestic  or  foreign 

1  "When  it  is  proposed  to  place  a  community  under  the  head  of  those  which 
are  capable  of  entering  into  some  only  of  the  relations  with  other  States  which 
are  contemplated  by  international  law,  the  only  questions  which  require  to  be 
settled  are  whether  its  independence  is  in  fact  impaired,  and  if  so,  in  what 
respects  and  to  what  degree.  The  nature  of  the  bond  derogating  from  inde- 
pendence which  unites  the  community  to  another  society  is  a  matter,  not  of 
international,  but  of  public  law ;  because  in  so  far  as  the  former  is  identified 
with  that  society  in  its  relations  with  other  States,  it  is  either  a  part  of  it,  or 
in  common  with  it  is  part  of  a  composite  State."     Hall,  Higgins'  7  ed.,  23-24. 

23 


§  13]      CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

affairs.^     The  United  States,  Japan,  Spain  and  Brazil  afford  in- 
stances. 

c 

Dependent  States 

(1) 
§  14.     Preliminary. 

A  dependent  State  is  one  which  by  reason  of  its  subordination 
to  another  State  or  States  is  subjected  to  external  restraint  in 
the  control  of  its  foreign  or  domestic  affairs,  and  thus  deprived 
of  those  rights  of  political  independence  which  are  commonly  ex- 
ercised by  the  freest  members  of  the  international  society.^  Va- 
rious forms  of  dependence  are  seen.  While  they  differ  greatly 
with  respect  to  the  extent  and  manner  of  the  restraint  imposed, 
it  may  be  doubted  whether  any  classification  indicates  with  pre- 
cision useful  distinctions  of  legal  value.  General  terms  have 
been  roughly  and  equivocally  employed  to  describe  relationships 
manifesting  the  dependence  of  one  State  upon  another,  and  with- 
out a  common  design  of  attaching  to  them  a  signification  purport- 
ing to  refer  to  any  peculiar  degree  of  subordination.^  For  that 
reason  it  is  believed  to  suffice  to  note  some  of  the  actual  and  yet 
differing  forms  of  dependence  which  have  been  established,  with 
a  view  to  observing  in  each  case  the  nature  and  manner  of  the 
restriction.  Inasmuch  as  the  United  States  has,  by  virtue  of 
treaties,  undertaken  in  various  ways  to  become  the  protector  of 
certain  neighboring  States,  the  relationships  thus  established 
merit  close  examination. 

*  "  Independence  means  freedom  from  control,  and  a  State  like  the  United 
Kingdom  or  France  is  independent  because  it  is  free  from  all  control  either 
over  its  internal  government  or  over  its  foreign  relations."  Westlake,  2  ed., 
I,  20. 

Obviously  no  State  is  wholly  free  from  external  control.  The  society  of 
nations,  notwithstanding  its  imperfect  organization,  imposes  restrictions 
which  the  individual  State  is  not  free  to  disregard.  For  that  reason  it  might 
not  be  inaccurate  to  describe  an  independent  State  as  one  which  enjoys  that 
freedom  from  external  control  which  is  acknowledged  to  be  the  possession  of 
the  freest  States  belonging  to  the  international  society. 

2  W.  W.  Willoughby  and  C.  G.  Fenwick,  "Types  of  Restricted  Sovereignty 
and  of  Colonial  Autonomy",  Dept.  of  State,  confidential  document,  Jan.  10, 
1919;  C.  G.  Fenwick,  "Wardship  in  International  Law",  Dept.  of  State, 
confidential  document,  1919. 

'  For  sake  of  convenience,  the  terms  "protectorate"  and  "protected  State" 
are  employed  in  the  text  to  refer  generally  to  States  in  a  temporary  or  per- 
manent condition  of  dependency,  and  without  the  design  of  attaching  to  either 
a  special  significance  purporting  to  illustrate  a  particular  degree  or  kind  of 
subordination.  See,  in  this  connection,  Roland  R.  Foulke,  International  Law, 
PhUadelphia,  1920,  §§  50-52. 

24 


THE  IONIAN  ISLANDS  [§  15 

(2) 
Certain  So-called  Protectorates  and  Protected  States 

§  15.   The  Ionian  Islands. 

A  relationship  may  be  established  whereby  one  State,  on  ac- 
count of  the  protection  afforded  by  another,  is  unable  to  enter 
into  foreign  relations  without  the  consent  of  its  protector.  The 
large  restraint  imposed  upon  the  inferior  State  serves  to  burden 
its  superior  with  a  proportional  responsibility  in  the  according  of 
protection,^  and  for  the  conduct  of  its  ward.'  The  Ionian  Islands, 
placed  under  the  protection  of  Great  Britain  by  virtue  of  the 
treaty  concluded  by  that  Power  with  Austria,  Prussia  and  Russia, 
November  5,  1815,  and  until  annexation  to  Greece  in  1863,  are 
commonly  mentioned  as  illustrative  of  such  a  relationship,  which 
is  described  as  constituting  a  protectorate.^  Apart  from  the 
right  to  receive  commercial  agents  or  consuls,  and  to  display  a 
distinctive  trading  flag,^  the  Islands  possessed  no  right  to  control 
their  foreign  relations.^ 

1  Westlake,  2  ed.,  I,  22-23. 

2  "A  protectorate,  however  qualified,  assumes  a  greater  or  less  degree  of 
responsibility  on  the  part  of  the  protector  for  the  acts  of  the  protected  State, 
without  the  ability  to  shape  or  control  these  acts,  unless  the  relation  created 
be  virtually  that  of  colonial  dependency,  with  paramount  intervention  of  the 
protector  in  the  domestic  concerns  of  the  protected  community."  Mr.  Sher- 
man, Secy,  of  State,  to  Mr.  Powell,  Minister  to  Haiti,  No.  97,  Jan.  11,  1898, 
MS.  Inst.  Haiti,  III,  629,  Moore,  Dig.,  VI,  475,  476. 

3  Brit,  and  For.  State  Pap.,  Ill,  250;   The  Ionian  Ships,  2  Spinks,  212,  221. 
••  Art.  VII  of  the  treaty  of  Nov.  5,  1815,  Brit,  and  For.  State  Pap.,  Ill, 

257. 

^  Declares  Hall :  "The  head  of  the  government  was  appointed  by  England, 
the  whole  of  the  executive  authority  was  practically  in  the  hands  of  the  pro- 
tecting power,  and  the  state  was  represented  by  it  in  its  external  relations. 
In  making  treaties,  however.  Great  Britain  did  not  affect  the  Ionian  Islands 
unless  it  expressly  stipulated  in  its  capacity  of  protecting  power;  the  vessels 
of  the  republic  carried  a  separate  trading  flag;  the  state  received  consuls, 
though  it  could  not  accredit  them ;  and  during  the  Crimean  War  it  maintained 
a  neutrality  the  validity  of  which  was  acknowledged  in  the  English  Courts." 
Higgins'  7  ed.,  28. 

Concerning  the  Republic  of  San  Marino,  under  the  protection  of  Italy,  see 
Fernand  Daguin,  La  Republique  de  Saint-Marin,  Paris,  1904 ;  E.  Engelhardt, 
Les  Protectorats  Anciens  et  Modernes,  Paris,  1896,  102-105.  It  may  be  ob- 
served that  the  United  States  concluded  an  extradition  treaty  with  San  Marino 
June  6,  1906.     Malloy's  Treaties,  II,  1598. 

Concerning  the  Republic  of  Andorra  in  the  Pyrenees  under  the  co-protec- 
tion of  France  and  Spain  (exercised  through  the  Bishop  of  Urgel)  see  Joseph 
Roca,  De  la  Condition  Internationale  des  Vallees  d'Andorre,  Antibes,  1908; 
also  Bonfils-Fauchille,  7  ed.,  §  177,  and  works  there  cited. 

Concerning  the  Principality  of  Monaco,  see  Hall,  Higgins'  7  ed.,  28,  and 
note  2  by  the  editor;  Bonfils-Fauchille,  7  ed.,  §  178,  with  bibliography; 
W.  W.  Willoughby  and  C.  G.  Fenwick,  "Types  of  Restricted  Sovereignty  and 
of  Colonial  Autonomy  ",  Dept.  of  State,  confidential  document,  Jan.  10, 19i9, 
p.  59. 

25 


§  16]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

§  16.    The  Free  City  of  Danzig. 

By  the  treaty  of  peace  with  Germany,  of  June  28,  1919,  the 
Principal  Allied  Powers  undertook  to  establish  the  town  of 
Danzig  as  a  "  Free  City  "  to  be  placed  under  the  protection  of 
the  League  of  Nations.^  Those  Powers  agreed  to  negotiate  a 
treaty  between  the  Polish  Government  and  the  Free  City  of 
Danzig,  whereby  the  Polish  Government  should  undertake  the 
conduct  of  the  foreign  relations  of  that  City,  as  well  as  the 
diplomatic  protection  of  its  citizens  when  abroad.^ 

(3) 
So-called  Suzerainties 

§  17.   Bulgaria,  1878-1908. 

A  relationship  manifesting  the  dependence  of  one  State  upon 
another  has,  in  particular  cases,  been  described  as  a  suzerainty.^ 
Until  it  proclaimed  its  independence  on  October  5,  1908,''  Bul- 
garia was  a  vassal  State,  and,  according  to  the  Treaty  of  Berlin  of 
July  13,  1878,  constituted  an  "  autonomous  and  tributary  Prin- 
cipality, under  the  suzerainty  of  His  Imperial  Majesty  the  Sultan  " 
of  Turkey.^  That  agreement  provided  that  the  treaties  between 
the  Powers  and  Turkey  were  to  be  maintained  in  the  Principality, 
and  that  no  change  should  be  made  in  them  with  regard  to  any 
Power  without  its  previous  consent.  Privileges  and  immunities 
of  foreigners  and  rights  of  consular  jurisdiction  and  protection, 
"  as  established  by  the  capitulations  and  usages  ",  were  to  remain 
in  force  until  modified  with  the  approval  of  the  parties  concerned. 
To  Turkey,  the  suzerain,  the  Principality  was  to  pay  an  annual 
tribute.  Save  for  provisions  substituting  the  Principality  for 
the  Sublime  Porte  in  specified  engagements  in  relation  to  certain 
railways,  and  contemplating  further  conventions  in  that  regard, 

1  Art.  102.  2  Art.  104  (6). 

'  Declares  Professor  Moore  with  respect  to  the  relationship  of  suzerainty : 
"The  extent  of  the  authority  or  subordination  comprehended  by  this  term  is 
not  determined  by  general  rules,  but  by  the  facts  of  the  particular  case.  The 
foreign  relations  of  a  subject  State  may  be  wholly  and  directly  conducted 
through  the  ministry  of  foreign  affairs  of  the  suzerain.  It  may,  on  the  other 
hand,  maintain  diplomatic  relations,  and,  subject  to  the  veto  of  the  suzerain, 
conclude  treaties  of  all  kinds;  but,  more  frequently,  its  right  of  initiative, 
if  it  possesses  any,  is  confined  to  a  limited  sphere;  and  a  consul-general  ac- 
credited to  it,  though  he  may  also  bear  the  title  of  agent  or  even  of  diplomatic 
agent,  exercises  only  consular  powers."     Dig.,  I,  27. 

*  For.  Rel.  1908,  57. 

5  Nouv.  Rec.  Gen.,  2  ser..  Ill,  449;  Brit,  and  For.  State  Pap.,  LXIX,  749; 
U.  S.  For.  Rel.  1878,  895 ;  also,  T.  E.  Holland,  The  European  Concert  in  the 
Eastern  Question,  277. 

26 


CUBA  [§  19 

no  arrangement  was  made  for  the  conclusion  of  treaties  by  the 
Principality.^  Nevertheless,  it  proceeded  to  exercise  such  a  right, 
and  maintained  direct  diplomatic  relations  with  foreign  States.^ 

§  18.    Egypt,  1840-1914. 

Prior  to  the  establishment  of  the  protectorate  proclaimed  by 
Great  Britain  December  IS,  1914,  Egypt  was  said  to  be  subject 
to  the  suzerainty  of  the  Sultan  of  Turkey.  By  the  treaty  of  July 
15,  1840,  concluded  by  Great  Britain,  Austria,  Prussia,  Russia 
and  Turkey,^  and  the  so-called  firman  of  June  1,  1841,^  Egypt  be- 
came an  hereditary  Pashalic  under  the  rule  of  the  family  of 
Mehemet  Ali.^  The  ruler  of  the  country,  who  bore  the  title  of 
Khedive,  paid  annual  tribute  to  the  Sultan.  The  former  was 
authorized  to  negotiate  with  foreign  powers  non-political  treaties 
not  interfering  with  the  political  treaties  of  the  Sultan,  or  with 
his  sovereignty  over  Egypt.  It  was  required,  however,  that 
treaties  negotiated  by  the  Khedive  should,  prior  to  their  pro- 
mulgation by  him,  be  communicated  to  the  Sultan.^ 

(4) 

Relationships  Established  between  the  United  States  and  Certain 
Neighboring  States 

(a) 
§  19.   Cuba. 

By  virtue  of  a  treaty  with  the  United  States  of  May  22,  1903, 
in  pursuance  of  declarations  in  the  Cuban  Constitution  of  May  20, 

1  Arts.  I-XII  of  the  Treaty  of  Berlin,  Brit,  and  For.  State  Pap.,  LXIX, 
751-755 ;    For.  Rel.  1878,  895,  896-899. 

^  The  United  States  accredited  a  diplomatic  agent  to  Bulgaria  in  the  person 
of  its  minister  to  Greece.  See  Am.  J.,  I,  Supp.,  86-87,  containing  List  of 
Diplomatic  Officers  of  the  United  States,  corrected  to  Jan.  1,  1907. 

G.  Scelle,  '^  La  situation  diplomatique  de  la  Bulgarie  avant  la  proclamation  de 
son  independence  le  5,  octobre  1908" ,  Rev.  Gen.,  XV,  524. 

^  Nouv.  Rec.  Gen.,  I,  156 

*  " L'Egypte  et  les  firmans",  Rev.  Gen.,  Ill,  291. 

*  For  texts  of  the  firmans  of  the  Sultan  from  1841  to  1879,  illustrative  of  the 
international  position  of  Egypt,  see  T.  E.  Holland,  European  Concert  in  the 
Eastern  Question,  110-205.  ' 

6  See  firman  of  June  8,  1873,  Nouv.  Rec.  Gen.,  XVII,  629;  also  that  of 
Aug.  14,  1879,  Nouv.  Rec.  Gen.,  2  .ser.,  VI,  508. 

It  should  be  observed,  however,  that  for  many  years  prior  to  1914,  Egypt 
was  occupied  by  Great  Britain,  whose  influence  was  predominant  in  the  ad- 
ministration of  the  government.  See  generally,  Bonfils-Fauchille,  7  ed., 
§  189,  with  extensive  bibliographv;  E.  Engelhardt,  Les  Protectorats  Anciens 
et  Modernes,  66-70.    See,  also.  The  Charkieh,  (187:5)  L.  R.  4  Adm.  and  Eccl.  59. 

Concerning  the  diplomatic  relations  of  the  United  States  with  Egypt,  cf. 
Moore,  Dig.,  V,  584-586,  and  documents  there  cited. 

27 


§  19]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

1902,  and  in  accordance  with  provisions  of  an  Act  of  Congress  of 
the  United  States  of  March  2,  1901,  the  Government  of  Cuba 
consented : 

that  the  United  States  may  exercise  the  right  to  intervene 
for  the  preservation  of  Cuban  independence,  the  maintenance 
of  a  government  adequate  for  the  protection  of  hfe,  property, 
and  individual  Hberty,  and  for  discharging  the  obhgations  with 
respect  to  Cuba  imposed  by  the  Treaty  of  Paris  on  the  United 
States,  now  to  be  assumed  and  undertaken  by  the  Government 
of  Cuba.^ 

That  RepubHc  also  agreed  never  to  enter  into  any  treaty  or 
other  compact  with  any  foreign  power  or  powers 

which  will  impair  or  tend  to  impair  the  independence  of  Cuba, 
nor  in  any  manner  authorize  or  permit  any  foreign  power  or 
powers  to  obtain  by  colonization  or  for  military  or  naval  pur- 
poses, or  otherwise,  lodgment  in  or  control  over  any  portion 
of  said  island. - 

It  undertook  also  not  to  assume  or  contract  any  public  debt 
to  pay  the  interest  upon  which,  and  to  make  reasonable  sinking- 
fund  provision  for  the  ultimate  discharge  of  which  the  ordinary 
revenues  of  the  island,  after  defraying  the  current  expenses  of 
the  Government,  should  be  inadequate.^  The  Cuban  Govern- 
ment agreed  to  execute,  and,  as  far  as  necessary,  to  extend  exist- 
ing plans,  or  other  plans  to  be  mutually  agreed  upon,  for  the  sani- 
tation of  the  cities  of  the  Island,  with  a  view  to  preventing  a  re- 
currence of  epidemic  and  infectious  diseases,  for  the  protection 
of  the  people  and  commerce  of  Cuba,  and  for  the  benefit  also  of 
the  commerce  of  the  southern  ports  of  the  United  States  and  the 
people  residing  therein.* 

By  the  foregoing  provisions  Cuba  is  believed  to  have  accepted 
a  status  of  dependency  under  the  protection  of  the  United  States. 
The  rights  and  undertakings  of  the  latter,  and  the  restrictions 
acquiesced  in  by  the  former  with  respect  also  to  the  exercise  of 
the  treaty-making  power,  compel  such  a  conclusion.  It  may  be 
observed  that  the  United  States  has  found  occasion  to  intervene 
for  the  purposes  announced  in  the  convention  and  with  a  view 

^  Art.  Ill,  Malloj''s  Treaties,  I,  364. 

2  Art.  I,  id.,  363.  See  also  President  Roosevelt,  Annual  Message,  Dec.  3, 
1901,  For.  Rel.  1901,  XXXI. 

3  Art.  II. 

*  Art.  V.  See,  in  this  connection,  Decree  of  Chas.  E.  Magoon,  Provisional 
Governor  of  Cuba,  Sept.  27,  1908,  For.  Rel.  1908,  254. 


PANAMA  [§  20 

to  preserving  and  maintaining  a  government  adequate  for  the 
purposes  described  therein.^  The  references  in  the  compact  to 
"  independence  "  must  be  taken  generally  to  refer  to  Cuban  free- 
dom from  external  control  as  exerted  by  States  other  than  the 
United  States,  and  by  the  United  States  beyond  the  extent  which 
the  convention  permits.^ 

(b) 
§  20.    Panama. 

By  the  treaty  of  November  18,  1903,  between  the  United  States 
and  Panama,  the  former  undertook  to  guarantee  and  maintain 
the  "  independence  of  the  Republic  of  Panama."  ^  The  latter 
not  only  granted  to  the  United  States  in  perpetuity  the  use,  occu- 
pation and  control  of  a  specified  zone  of  land  and  land  under  water 
for  the  construction,  maintenance,  operation,  sanitation  and 
protection  of  an  inter-oceanic  ship  canal,  and  of  ten  miles  in  width 
(together  with  certain  lands  and  islands  outside  of  the  zone),  as 
well  as  rights  akin  to  those  of  sovereignty  over  the  zone  and  auxil- 
iary lands  and  waters,^  but  also  agreed  that 

If  it  should  become  necessary  at  any  time  to  employ 
armed  forces  for  the  safety  or  protection  of  the  Canal,  or  of 
the  ships  that  make  use  of  the  same,  or  the  railways,  and 
auxiliary  works,  the  United  States  shall  have  the  right,  at  all 
times  and  in  its  discretion,  to  use  its  police  and  its  land  and 
naval  forces  or  to  establish  fortifications  for  these  purposes.^ 

^  The  United  States  intervened  in  Cuba  in  1906,  establishing  a  mihtary 
occupation  which  continued  until  1909. 

See  For.  Rel.  1906,  I,  454-494,  especially  President  Roosevelt  to  Senor 
Quesada,  Cuban  Minister,  Sept.  14,  1906,  td.,  480.  See,  also,  Mr.  Knox, 
Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Cuba,  June  21,  1910,  For.  Rel. 
1910,  416;  Mr.  Knox,  Secv.  of  State,  to  the  American  Charg6  d' Affaires, 
Aug.  15,  1912,  For.  Rel.  1912,  314. 

2  The  description  of  States  placed  under  the  protection  of  others  as  "inde- 
pendent" in  the  very  documents  which  purport  to  establi.sh  a  status  of  de- 
pendency is  not  uncommon.  The  reference  to  the  Ionian  Lslands  as  a  ".single, 
free  and  Independent  State",  in  the  treaty  of  Nov.  5,  1815,  is  illustrative. 
Brit,  and  For.  State  Pap.,  Ill,  250,  254. 

3  Art.  I,  Malloy's  Treaties,  II,  1349. 

*  Arts.  II  and  III.  By  Art.  V  Panama  granted  to  the  United  States 
in  perpetuity  a  monopoly  for  the  construction,  maintenance  and  operation  of 
any  system  of  communication  by  means  of  canal  or  railroad  across  its  terri- 
tory between  the  Caribbean  Sea  and  the  Pacific  Ocean. 

5  Art.  XXIII.  It  was  provided  in  Art.  XXIV  that  if  the  Republic  of 
Panama  should  thereafter  enter  as  a  constituent  into  any  other  government 
or  into  any  union  or  confederation  of  States,  so  as  to  merge  her  sovereignty 
or  independence  in  such  Government,  union  or  confederation,  the  rights  of 
the  United  States  under  the  convention  should  not  be  in  any  respect  lessened 
or  impaired. 

29 


§  20]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

The  Republic  granted  also  to  the  United  States  both  within  the 
limits  of  the  cities  of  Panama  and  Colon  and  within  the  harbors 
and  territory  adjacent  thereto,  the  broad  right  to  acquire  properties 
of  various  kinds  necessary  and  convenient  for  the  construction, 
maintenance,  operation  and  protection  of  the  Canal,  embracing 
works  of  sanitation.  It  was  agreed  that  those  cities  should  com- 
ply in  perpetuity  with  the  sanitary  ordinances  prescribed  by  the 
United  States,  and  it  was  declared  that 

in  case  the  Government  of  Panama  is  unable  or  fails  in  its 
duty  to  enforce  this  compliance  by  the  cities  of  Panama  and 
Colon  with  the  sanitary  ordinances  of  the  United  States,  the 
Republic  of  Panama  grants  to  the  United  States  the  right  and 
authority  to  enforce  the  same. 

The  same  right  and  authority  are  granted  to  the  United 
States  for  the  maintenance  of  public  order  in  the  cities  of  Pan- 
ama and  Colon  and  the  territories  and  harbors  adjacent  thereto 
in  case  the  Republic  of  Panama  should  not  be,  in  the  judgment 
of  the  United  States,  able  to  maintain  such  order. ^ 

Although  the  foregoing  provisions  may  not  have  been  designed 
to  impose  a  status  of  dependency  upon  the  Republic  of  Panama, 
the  nature  and  scope  of  the  rights  conferred  as  incidental  to  the 
maintenance  and  protection  of  the  Canal,  and  outside  of  as  well 
as  within  the  zone,  served  to  subject  that  country  to  a  marked 
degree  of  external  control.  By  granting  to  a  foreign  State  the 
right  to  conduct  for  all  time  an  enterprise  of  the  kind  and  magni- 
tude of  the  Canal,  and  bearing  the  geographical  relationship 
which  it  did  to  the  territory  of  the  grantor,  Panama  undertook, 
and  doubtless  wisely,  to  subordinate  its  interests,  whether  do- 
mestic or  foreign,  to  those  of  the  grantee  in  relation  to  the  Canal, 
in  case  of  any  conflict  between  them.-  By  so  doing  it  relinquished, 
with  respect  to  such  matters,  its  independence.  Otherwise  that 
Republic  retained  its  freedom  of  action.^ 

1  Art.  VII. 

By  Art.  XXV  the  Government  of  Panama  agreed  to  sell  or  lease  to  the 
United  States  lands  adequate  and  necessary  for  naval  or  coaling  stations  on 
the  Pacific  coast  and  on  the  western  Caribbean  coast  of  the  Republic  at  cer- 
tain points  to  be  agreed  upon  by  the  President  of  the  United  States. 

For  the  rights,  powers  and  privileges  granted  to  it,  the  United  States  agreed 
to  pay  to  the  Republic  of  Panama  the  sum  of  $10,000,000,  and  an  annual  pay- 
ment during  the  life  of  the  convention  of  $250,000.     Art.  XIV. 

»  See  Mr.  Root,  Secy,  of  State,  to  Mr.  Taft,  Secy,  of  War,  Feb.  21,  1906, 
concerning  the  right  of  the  United  States  under  the  treaty  with  Panama  to 
maintain  public  peace  and  order  in  the  territory  of  that  State,  For.  Rel.  1906, 
II,  1203  ;  also  Mr.  Knox,  Secv.  of  State,  to  Mr.  Squiers,  Minister  to  Panama, 
April  19,  1909,  For.  Rel.  1909,  469. 

^  In  the  proclamation  of  President  Valdes  of  Panama,  of  April  7,  1917, 

30 


THE  DOMINICAN  REPUBLIC  [§  21 

(C) 

§  21.   The  Dominican  Republic. 

By  a  convention  of  February  8,  1907,  for  the  assistance  of  the 
United  States  in  the  collection  and  application  of  the  customs 
revenues  of  the  Dominican  Republic/  it  was  agreed  that  the  Presi- 
dent of  the  United  States  should  appoint  a  General  Receiver  of 
Dominican  Customs,  who  (with  such  assistant  receivers  and  other 
employees  of  the  receivership  similarly  appointed)  should  collect 
all  customs  duties,^  applying  the  sums  collected  according  to  a 
specified  plan.^  The  Dominican  Republic  agreed  not  only  to 
make  provision  for  the  pajnnent  of  all  customs  duties  to  the 
General  Receiver  and  his  assistants  and  to  give  them  all  needful 
aid  and  assistance  as  well  as  protection  "  to  the  extent  of  its 
powers ",  but  also  that  the  Government  of  the  United  States 
should  give  to  the  General  Receiver  and  his  assistants  "  such 
protection  as  it  may  find  to  be  requisite  for  the  performance  of 
their  duties."  ^  It  was  also  agreed  that  until  the  Dominican  Re- 
public had  paid  the  whole  amount  of  the  bonds  of  the  debt  men- 
tioned in  the  convention,  its  public  debt  should  not  be  increased 
except  by  a  previous  agreement  between  the  Dominican  Govern- 
ment and  the  United  States.'' 

concerning  the  cooperation  of  that  RepubHc  with  the  United  States  in  war 
against  Germany,  it  was  said  :  "Our  clear  and  indisputable  duty  in  this  dread- 
ful hour  of  human  history  is  that  of  a  natural  ally  whose  interests,  and  whose 
very  existence,  are  linked  in  a  perpetual  and  indissoluble  manner  with  the 
United  States  of  America,  and  this  is  the  meritorious  attitude  which  it  is  en- 
cumbent upon  us  to  adopt."  Declarations  of  War,  Dept.  of  State,  confidential 
document,  1919,  53,  54. 

1  The  preamble  of  the  convention  referred  at  length  to  the  financial  dif- 
ficulties of  the  Dominican  Republic,  the  magnitude  of  its  indebtedness,  created 
in  part  by  revolutionary  governments,  the  prevention  of  the  peaceable  and 
continuous  collection  of  revenues  for  the  payment  of  interest  or  principal  of 
its  debts,  the  arrangement  of  a  conditional  plan  of  settlement  with  foreign 
creditors,  the  issuance  and  sale  of  bonds  for  their  benefit,  and  the  conditioning 
of  the  plan  upon  the  assistance  of  the  United  States  in  the  collection  and  ap- 
plication of  customs  revenues  to  meet  the  interest  and  effect  the  amortization 
and  redemption  of  the  bonds.     See  Malloy's  Treaties,  I,  418. 

2  Art.  I.  The  period  of  such  collection  was  to  continue  "until  the  pajTnent 
or  retirement  of  any  and  all  bonds  issued  by  the  Dominican  Government  in 
accordance  with  the  plan  and  under  the  limitations  as  to  terms  and  amounts 
hereinbefore  recited." 

^  The  funds  received  were  to  be  applied  "first,  to  paj'ing  the  expenses  of 
the  receivership ;  second,  to  the  payment  of  interest  upon  said  bonds ;  third, 
to  the  payment  of  the  annual  sums  provided  for  amortization  of  said  bonds 
including  interest  upon  all  bonds  held  in  sinking  fund ;  fourth,  to  the  purchase 
and  cancellation  or  the  retirement  and  cancellation  pursuant  to  the  terms 
thereof  of  any  of  said  bonds  as  may  be  directed  by  the  Dominican  Govern- 
ment ;  fifth,  the  remainder  to  be  paid  to  the  Dominican  Government."    Art.  I. 

^  Art.  II.  See  Jacob  H.  Hollander,  "The  Convention  of  1907  between  the 
United  States  and  the  Dominican  Republic  ",  Am.  J.,  I,  287. 

*  Art.  III.     It  was  here  added:    "A  Uke  agreement  shall  be  necessary  to 

31 


§  21]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

By  the  foregoing  provisions  it  is  believed  that  the  Dominican 
Republic  accepted  the  protection  of  the  United  States,  for  the 
period  of  the  receivership,  and  for  the  sake  of  its  benefits  yielded 
to  such  American  control  as  might  be  entailed.  To  that  extent 
there  was  an  impairment  of  independence,  even  though  there  was 
no  establishment  of  a  permanent  status  of  dependency.  Save 
as  the  convention  implied  restraint  on  account  of  the  require- 
ments of  the  receivership,  the  Republic  was  not  hampered  in  the 
control  of  its  foreign  affairs. 

It  will  be  recalled  that  in  November,  1916,  the  United  States 
undertook  the  military  occupation  of  Dominican  territory  by  a 
naval  force  on  account  of  the  failure  of  the  Republic  to  observe 
the  terms  of  the  convention  with  respect  to  the  increase  of  its 
public  debt  and  by  reason  of  the  resulting  disturbance  of  domestic 
tranquillity.^ 

On  December  24, 1920,  the  Department  of  State  gave  to  the  press 
a  proclamation  which  the  President  had  directed  Rear-Admiral 
Snowden,  the  ^Military  Governor  of  Santo  Domingo,  to  issue,  in 
which  was  announced  the  achievement  of  the  purposes  of  the 
United  States  in  the  employment,  pursuant  to  the  treaty  of  1907, 
of  military  forces  within  Dominican  territory,  the  contemplated 
withdrawal  of  responsibilities  assumed  in  connection  with  Domin- 
ican affairs,  and  the  plan  of  appointing  a  Commission  of  Dominican 
citizens  to  formulate  amendments  to  the  Constitution  and  a  general 
revision  of  the  laws  of  the  Republic  (including  the  drafting  of  a 
new  election  law),  for  submission,  upon  approval  by  the  Military 
Government  in  occupation,  to  a  Constitutional  Convention  and 
to  the  National  Congress  of  the  Dominican  Republic. 

(d) 
§  22.    Haiti. 

In  order  to  remedy  the  existing  condition  of  its  finances,  and 
to  assist  in  the  economic  development  and  tranquillity  of  the 

modify  the  import  duties,  it  being  an  indispensable  condition  for  the  modifica- 
tion of  such  duties  that  the  Dominican  Executive  demonstrate  and  that  the 
President  of  the  United  States  recognize  that,  on  the  basis  of  exportations 
and  importations  to  the  Hke  amount  and  the  Uke  character  during  the  two 
years  preceding  that  in  which  it  is  desired  to  make  such  modification,  the 
total  net  customs  receipts  would  at  such  altered  rates  of  duties  have  been  for 
each  of  such  two  years  in  excess  of  the  sum  of  $2,000,000  United  States  gold." 
1  See  proclamation  of  Capt.  H.  S.  Knapp,  U.  S.  X.,  Nov.  29,  1916,  Ain.  J., 
XI,  Supp.,  96;  also  editorial  comment  by  Philip  Marshall  Brown,  on  "The 
Armed  Occupation  of  Santo  Domingo",  in  Am.  J.,  XI,  394.  See,  also,  Mr. 
Knox,  Secv.  of  State,  to  the  American  Minister  to  the  Dominican  Republic, 
Jan.  23,  1912,  For.  Rel.  1912,  341. 

32 


HAITI  [§  22 

Republic,  Haiti  concluded  a  treaty  with  the  United  States  Sep- 
tember 16,  1915,^  whereby  the  latter  undertook  "  by  its  good 
offices  ",  to  give  its  aid.^  The  President  of  Haiti  was  to  appoint, 
upon  nomination  by  the  President  of  the  United  States,^  a  General 
Receiver  and  necessary  aids,  who  were  to  collect,  receive  and  apply 
all  customs  duties  on  imports  and  exports ;  and  he  was  to  appoint, 
upon  like  nomination,  a  Financial  Adviser,  to  be  an  officer  attached 
to  the  Ministry  of  Finance,  clothed  with  broad  advisory  and  con- 
structive powers.^  Haiti  undertook  to  give  all  needful  aid  to 
these  officers  and  to  the  receivership,  and  the  United  States  on 
its  part  agreed  to  "  extend  like  aid  and  protection."  ^  All  sums 
collected  and  received  by  the  General  Receiver  were  to  be  ap- 
plied according  to  a  specified  arrangement.^  The  Government 
of  Haiti  undertook  not  to  increase  its  public  debt  except  by 
previous  arrangement  with  the  President  of  the  United  States, 
and  not  to  contract  any  debt  or  assume  any  financial  obligation 
unless  the  ordinary  revenues  of  the  Republic  available  for  that 
purpose,  after  defraying  the  expenses  of  the  Government,  should 
be  adequate  to  pay  the  interest  and  provide  a  sinking  fund  for 
the  final  discharge  of  such  debt.'  Modification  of  customs  duties 
was  also  rendered  subject  to  agreement  with  the  President  of  the 
United  States ;  and  there  was  assurance  by  Haiti  to  cooperate 
with  the  Financial  Adviser  in  his  recommendations.^ 

There  was  arrangement  for  the  establishment  of  an  efficient 
constabulary  to  be  composed  of  native  Haitians,  "  organized  and 
officered  by  Americans  to  be  appointed  by  the  President  of  Haiti 
upon  nomination  by  the  President  of  the  United  States."^ 

The  Government  of  Haiti  acquiesced  in  the  important  under- 
taking not  to  surrender  any  of  the  territory  of  the  Republic  by 
sale,  lease,  or  otherwise,  or  jurisdiction  over  such  territory,  to  any 
foreign  government  or  power,  or  to  enter  into  any  treaty  or  con- 
tract with  Qxvf  foreign  power  or  powers  that  would  impair  or  tend 
to  impair  the  independence  of  Haiti. ^'^     It  was  agreed  also  that 

1  39  Stat.  1654 ;  also,  in  this  connection,  editorial  comment  by  George  A. 
Finch,  Am.  J.,  X,  859. 

2  Art.  I. 

'  Art.  II.  Compare  this  provision  with  Art.  I  of  the  Convention  with  the 
Dominican  Republic  of  Feb.  8,  1907,  Mallov's  Treaties,  I,  419. 

4  Id.  5  Art.  III. 

6  Art.  V.  See,  also,  Art.  IV  with  respect  to  the  classification  of  Haitian 
debts. 

■>  Art.  VIII.  8  Art.  IX. 

9  Art.  X.  The  authority  and  ultimate  organization  of  the  constabulary 
were  here  described. 

10  Art.  XI.     Art.  XII  made  provision  for  the  adjustment  of  pecuniary  claims. 

vol,.   1  —  2  33 


§  22]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

The  high  contracting  parties  shall  have  authority  to  take 
such  steps  as  may  be  necessary  to  insure  the  complete  attain- 
ment of  any  of  the  objects  comprehended  in  this  treaty ;  and 
should  the  necessity  occur,  the  United  States  will  lend  an  effi- 
cient aid  for  the  preservation  of  Haitian  independence  and  the 
maintenance  of  a  government  adequate  for  the  protection  of 
life,  property  and  individual  liberty.^ 

The  treaty  was  to  remain  in  force  for  the  term  of  ten  years  from 
the  date  of  the  exchange  of  ratifications,  and  for  a  subsequent  term 
of  ten  years  if,  for  specific  reasons  presented  by  either  of  the  high 
contracting  parties,  the  purpose  of  the  agreement  had  not  been 
fully  accomplished.^ 

By  clothing  the  United  States  with  the  right  to  preserve  do- 
mestic tranquillity  and  to  rehabilitate  financial  conditions,  and 
by  relinquishing  certain  rights  pertaining  to  the  exercise  of  its 
normal  powder  to  contract  or  cede  territory,  the  Republic  of  Haiti 
appeared  to  accept  the  protection  of  the  United  States,  and  to 
that  extent  to  consent,  during  the  life  of  the  treaty,  to  an 
abridgment  of  its  independence. 

(e) 
§  23.    Nicaragua. 

A  convention  between  the  United  States  and  Nicaragua,  of 
August  5,  1914,  contained  a  grant  in  perpetuity  to  the  United 
States  of  the  exclusive  proprietary  right  necessary  and  convenient 
for  the  construction,  operation  and  maintenance  of  an  interoceanic 
canal  by  way  of  the  San  Juan  River  and  the  great  Lake  of  Nica- 
ragua, or  by  way  of  any  route  over  Nicaraguan  territory.^  In 
order  to  enable  the  United  States  to  protect  the  Panama  Canal 
and  "  the  proprietary  rights  granted  to  the  Government  of  the 
United  States  by  the  foregoing  Article",  and  also  to  enable  it  to 
"  take  any  measures  necessary  to  the  ends  contemplated  herein  ", 

Art.  XIII  provided  for  sanitary  and  public  improvements  to  be  made  under 
the  supervision  and  direction  of  engineers  to  be  appointed  by  the  President 
of  Haiti  on  nomination  by  the  President  of  the  United  States. 

1  Art.  XIV.  Compare  Art.  Ill  of  the  convention  with  Cuba  of  May  22, 
1903,  Malloy's  Treaties,  I,  364. 

2  Art.  XVI.  Ratifications  were  exchanged  at  Washington  May  3,  1916,  on 
which  day  the  treaty  was  proclaimed  by  the  President  of  the  United  States. 

'  39  Stat.  1661.  See,  also,  in  this  connection,  editorial  comment  by 
George  A.  Finch,  in  Am.  J.,  X,  344,  reviewing  the  history  of  this  convention. 
The  i^rovisions  mentioned  in  the  text  are  contained  in  Art.  I.  It  may  be  noted 
that  the  convention  was  ratified  by  the  President  of  the  United  States  June  19, 
1916,  and  that  ratifications  were  exchanged  at  Washington,  June  22,  1916. 
See,  also,  the  terms  on  which  the  Senate  advised  and  consented  to  ratification, 
39  Stat.  1664. 

34 


CERTAIN  CONCLUSIONS  [§  24 

there  was  leased  to  it,  for  a  term  of  ninety-nine  years,  the  islands 
in  the  Caribbean  Sea  known  as  Great  Corn  Island  and  Little  Corn 
Island,  and  there  was  granted  to  it  for  a  like  period  the  "  right 
to  establish,  operate  and  maintain  a  naval  base  at  such  place  on 
the  territory  of  Nicaragua  bordering  upon  the  Gulf  of  Fonseca 
as  the  Government  of  the  United  States  may  select."  It  was  de- 
clared that 

the  territory  hereby  leased  and  the  naval  base  which  may  be 
maintained  under  the  grant  aforesaid  shall  be  subject  exclu- 
sively to  the  laws  and  sovereign  authority  of  the  United  States 
during  the  terms  of  such  lease  and  grant  and  of  any  renewal 
or  renewals  thereof.^ 

Apart  from  the  right  conferred  upon  the  United  States  to  take 
measures,  should  occasion  arise,  necessary  to  achieve  the  ends 
contemplated  by  the  convention,  there  appears  to  have  been  no 
design  to  accord  to  it  the  rights  or  functions  of  a  protector. 
Neither  the  grant  nor  the  lease  sufficed  in  themselves  to  reduce 
Nicaragua  to  a  condition  of  subordination,  although  they  doubt- 
less yielded  to  the  grantee  and  lessee  privileges  likely  to  be  pro- 
ductive of  such  a  result  in  case  of  need.  Nicaragua  did  not 
consent  to  accept,  save  under  such  a  contingency,  a  condition  of 
dependency  involving  the  protection  of  another  State. 

(f) 
§  24.    Certain  Conclusions. 

The  relationships  with  Cuba,  Panama,  the  Dominican  Republic 
and  Haiti  reveal  a  willingness  on  the  part  of  those  Republics  to 
accept,  for  the  reasons  that  have  been  observed,  the  protection 
of  the  United  States,  and  to  yield  to  it  broad  and  definite  rights 
for  the  maintenance  of  public  order. ^  These  rights,  whether  in- 
cidental to  the  execution  of  plans  for  financial  rehabilitation,  as 
in  the  case  of  the  Dominican  Republic  and  Haiti,  or  to  the  opera- 
tion of  an  interoceanic  canal,  as  in  the  case  of  Panama,  or  to  the 
general  establishment  and  advancement  of  a  new  State,  as  in  the 
case  of  Cuba,  exhibit  a  readiness  on  the  part  of  the  grantors  to 
relinquish  or  suspend  during  the  lives  and  according  to  the  terms 
of  their  respective  conventions,  normal  rights  of  political  inde- 

^  Art.  II.  For  the  rights  acquired  under  the  convention,  the  United  States 
agreed  to  pay  to  Nicaragua  the  sum  of  $3,000,000.     Art.  III. 

-  The  convention  with  Nicaragua  is  omitted  from  this  summary  because  of 
its  terms,  which,  as  has  been  ob.served,  appear  in  only  a  faint  degree  to  reveal 
a  design  which  is  common  to  the  other  agreements. 

35 


§  24]     CLASSIFICATrON  OF  STATES  OF  INTERNATIONAL  LAW 

pendence.  This  voluntary  yielding  to  varying  degrees  of  external 
control  is  the  significant  fact  to  be  reckoned  with.  It  has  not 
been  accompanied  by  a  surrender  also  of  the  agreement-making 
power  to  the  protector,  although  these  Republics  have  under- 
taken not  to  exercise  that  power  with  respect  to  certain  important 
matters  without  the  approval  of  the  United  States.  This  cir- 
cumstance does  not,  however,  alter  the  distinctive  character  of 
these  relationships  which,  despite  differences  between  any  two  of 
them,  with  respect  to  permanence  or  design,  permit  the  United 
States  to  enforce  tranquillity  and  maintain  public  order  as  a  pro- 
tector. In  so  doing  it  fulfills  in  the  estimation  of  the  outside 
world  a  quasi-domestic  function  for  the  benefit  chiefly  of  its  ward, 
and  is  not  subject  to  the  principles  which  generally  determine 
the  propriety  of  intervention  in  the  affairs  of  independent  States.^ 
In  proportion  as  the  United  States  by  virtue  of  these  conventions 
exercises  rights  which  they  confer  as  a  privilege  peculiarly  its  own, 
and  in  which  no  foreign  State  is  permitted  to  participate,  it  ap- 
pears to  assume  internationally  a  certain  responsibility  for  con- 
ditions of  government  within  the  territories  concerned. 

(5) 

§  25.    Protection  of  Countries    Lacking   European    Civili- 
zation. 

Not  infrequently  a  so-called  protectorate  is  established  by  a 
State  over  a  territory  or  country  unfamiliar  with  and  not  possessed 
of  what  is  known  as  European  civilization,  or  over  a  region  which 
may  be  fairly  deemed  to  be  uncivilized.  An  uncivilized  community, 
while  it  remains  such,  lacks  the  capacity  to  be  a  person  or  State 
of  international  law.^  The  outside  world  regards  territory  occupied 
by  such  a  community  as  subject  to  the  control  of  the  State  which 
exercises  in  fact  a  right  of  protection  therein.  Thus,  in  a  broad 
sense,  the  relationship  established  between  the  State  and  the  pro- 
tected region  is  not  internationally  important.  An  anomalous 
situation  exists,  however,  when  the  protector,  claiming  the  right 
to  exclude  foreign  States  from  intercourse  with  the  protected  terri- 
tory, does  not  purport  to  annex  it,  or  to  assume  responsibility 
for  the  establishment  of  government  therein.^ 

^  See  Intervention,  In  General,  infra,  §  G9. 

2  "'Where  there  is  no  State,  that  is  to  say,  in  an unciviHzed  region,  there  can 
be  no  protected  State,  and  therefore  no  such  protectorate  as  has  been  de- 
scribed in  the  last  paragraph."  Westlake,  Collected  Papers,  182.  See 
Countries  Xot  Possessed  of  European  Civilization,  infra,  §  33. 

3  See  General  Act  of  the  Berlin  Conference  of  Feb.  26,  1885,  concerning  the 

36 


COUNTRIES  LACKING  EUROPEAN  CIVILIZATION       [§  25 

Where  a  so-called  protectorate  is  established  over  a  country 
possessing  a  civilization  other  than  European,  and  occupying 
territory  within  definite  limits,  a  situation  arises  somewhat  re- 
sembling in  theory  that  which  presents  itself  when  the  protected 
political  entity  is  a  State.  While  the  protected  country  by  reason 
of  the  nature  and  degree  of  its  civilization  may  not,  in  the  course 
of  its  development,  have  reached  the  stage  indicative  of  a  capacity 
for  statehood,  it  may,  nevertheless,  have  previously  enjoyed  ex- 
tensive diplomatic  intercourse  with  independent  powers,  and 
have  concluded  treaties  with  them.  In  such  case,  the  change 
"UTOught  by  the  creation  of  the  protectorate  becomes  a  matter 
of  direct  international  significance.  Thus  Tunis  was  a  party  to 
numerous  treaties  with  enlightened  States  when,  in  1881,  it  be- 
came a  French  protectorate.^  Likewise  Zanzibar  ^  and  Korea 
had  contracted  conventions  with  the  outside  world  when  Great 
Britain  and  Japan,  respectively,  established  protectorates  over 
them.^  The  States  of  international  law  doubtless  lack  the  right 
to  object  to  the  establishment  of  a  protectorate  over  such  a  country 
with  which  they  have  concluded  treaties,  and  by  virtue  of  which 
they  have  obtained  commercial  or  other  benefits.  Nevertheless, 
they  are  disposed  to  insist  that  their  contractual  privileges  shall 
remain  unaffected  until  at  least  the  protector  agrees  equitably 
to  supplant  them  with  direct  undertakings  of  its  own,  or  by  annex- 
ing the  protected  territory,  deals  with  it  as  a  part  of  its  own 
domain.^ 

The  point  seems  to  require  emphasis  that  in  an  international 
sense,  a  protectorate,  regardless  of  the  degree  or  kind  of  civiliza- 

assumption  of  protectorates  on  the  African  coast  by  anj'  of  the  contracting 
parties,  and  the  requirements  incidental  thereto  in  the  matter  of  notification, 
and  in  the  estabhshment  of  governmental  authority  in  regions  occupied, 
Nouv.  Rec.  Gen.,  2  ser.,  X,  414,  426 ;  Moore,  Dig.,  I,  267-268.  See  in  this  con- 
nection Westlake,  2  ed.,  I,  121-129. 

Concerning  the  protected  princess  of  India,  cf.  William  Lee-Warner,  The 
Protected  Princess  of  India,  London,  1894 ;  Westake,  Collected  Papers,  220- 
224. 

^  See  treaty  between  France  and  Tunis  of  May  12,  1881,  Nouv.  Rec.  Gen., 
2  ser.,  VI,  307;  also  treaty  of  June  8,  1883,  id.,  IX,  698.  See,  also,  in  this 
connection,  Bonfils-Fauchille,  7  ed.,  §  184,  and  literature  there  cited. 

As  early  as  August,  1797,  the  United  States  concluded  a  treaty  with  Tunis, 
and  did  so  again  Feb.  24,  1824.     Malloy's  Treaties,  II,  1794  and  1800. 

2  Brit,  and  For.  State  Pap.,  LXXXII,  054,  embracing  text  of  notification  of 
the  British  protectorate  under  date  of  Nov.  4,  1890;  also  declarations  of  Great 
Britain  and  France,  of  Aug.  5,  1890,  id.,  89. 

'  See  arrangements  between  Japan  and  Korea  of  Aug.  24,  1904,  U.  S.  For. 
Rel.  1904,  439,  and  Nov.  17,  1905,  id.,  1905,  612. 

*  See,  for  example,  treaty  between  the  United  States  and  France,  March  15, 
1904,  in  which  the  former  renounced  its  rights  under  existing  treaties  ^dth 
iums,  and  the  latter  undertook  on  its  part  "to  as.sure  these  rights  and  privileges 

37 


§  25]    CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

tion  prevailing  in  the  country  over  which  it  is  exercised,  contem- 
plates the  retention  by  that  country  of  a  personality  recognizable 
as  such  by  the  family  of  nations.  Such  retention  is  manifested 
by  some  participation,  however  slight,  in  the  conduct  of  foreign 
relations,  or  by  the  continuance  of  a  political  entity  maintaining, 
although  possibly  through  the  representation  of  the  protector, 
diplomatic  relations  with  the  outside  world.  When  France 
established  its  protectorate  over  Morocco  in  1912,^  and  Great 
Britain  proclaimed  a  protectorate  over  Egypt  in  1914,^  neither  of 
the  paramount  States  appeared  to  thwart  the  operation  of  this 
principle.  If  a  protecting  State  seeks  to  destroy  the  international 
personality  of  its  ward,  and  so  put  an  end  to  its  capacity  for  state- 
hood, it  would  seem  to  be  obliged  to  annex  the  territory  concerned, 
and  by  such  process  make  known  the  assertion  of  supremacy  as 
the  territorial  sovereign. 

(6) 

§  26.    Mandatory  States  under  the  League  of  Nations. 

The  Covenant  of  the  League  of  Nations  contemplated  a  special 
form  of  protection  for  colonies  and  territories  which,  as  a  conse- 

in  Tunis  to  the  consuls  and  citizens  of  the  United  States  and  to  extend  to  them 
the  advantage  of  all  treaties  and  conventions  existing  between  the  United 
States  and  France."     Malloy's  Treaties,  I,  544,  545. 

See  convention  between  the  United  State-;  and  Great  Britain  of  May  31, 
1902,  concerning  import  duties  in  Zanzibar,  Malloy's  Treaties,  I,  784.  See 
declaration  between  Great  Britain  and  France  of  Aug.  5,  1890,  embracing 
French  recognition  of  the  British  protectorate  over  Zanzibar,  and  British 
recognition  of  the  French  protectorate  over  Madagascar,  Brit,  and  For.  State 
Pap.,  LXXXII,  89.  By  the  agreement  between  Japan  and  Korea  of  Nov.  17, 
1905,  the  former  undertook  "  to  see  to  the  execution  of  the  treaties  actually 
existing  between  Korea  and  other  powers."     For.  Rel.  1905,  612. 

1  See  treaty  between  France  and  Morocco  of  March  30,  1912,  Am.  J.,  VI, 
Supp.,  207;  Nouv.  Rec.  Gen.,  3  ser.,  VI,  332.  C/.,  also,  convention  between 
France  and  Spain  concerning  Morocco,  Nov.  27,  1912,  id.,  VII,  323;  Am.  J., 
VII.  Supp.,  81.  See,  in  this  connection,  N.  Dwight  Harris,  "The  New  Moroc- 
can Protectorate",  Am.  J.,  VII,  245. 

2  See  Briti.sh  notification  of  Dec.  IS,  1914,  that  EgjiJt  was  placed  under 
the  protection  of  His  Britannic  Majesty,  and  would  thereafter  constitute  a 
British  protectorate,  Brit,  and  For.  State  Pap.,  CVIII,  185.  See  British  note 
of  Dec.  19,  1914,  addressed  to  His  Highness  Prince  Hu.ssein  Kamel  Pasha, 
respecting  the  establishment  of  the  protectorate,  id.,  CIX,  437.  Also  "The 
Egyptian  Protectorate",  The  Law  Journal  (London),  Dec.  24,  1914,  XLIX, 
710. 

It  may  be  noted  that  the  United  States  did  not  cease  to  accredit  a  diplo- 
matic agent  to  Morocco,  and  also  to  Egypt  in  consequence  of  the  establish- 
ment of  a  protectorate  over  the  former  country  in  1912,  and  over  the  latter 
in  1914.  See  Mr.  Lansing,  Secy,  of  State,  to  the  French  Ambassador  at 
Washington,  Jan.  17,  1917,  announcing  recognition  by  the  United  States  "of 
the  French  protectorate  over  the  French  zone  of  the  Shereefian  Empire." 
Naval  War  College,  Int.  Law  Documents,  1918,  208. 

38 


MANDATORY  STATES  UNDER  LEAGUE   OF  NATIONS     [§  26 

quence  of  The  World  War,  "  ceased  to  be  under  the  sovereignty 
of  the  States  which  formerly  governed  them  ",  and  which  were 
inhabited  by  peoples  "  not  able  to  stand  by  themselves  under 
the  strenuous  conditions  of  the  modern  world  ",  and  whose  well- 
being  and  development  were  declared  to  "  form  a  sacred  trust 
of  civilization."  ^  To  that  end,  it  was  announced  that  the  tute- 
lage of  such  peoples  should  be  entrusted  to  advanced  nations  which 
by  reason  of  their  resources,  experience  or  geographical  position 
could  best  undertake  the  responsibility,  and  which  were  able  to 
accept  it,  and  that  this  tutelage  should  be  exercised  by  such 
States  as  Mandatories  on  behalf  of  the  League.- 

It  was  provided  that  in  every  case  of  mandate,  the  Mandatory 
should  render  to  the  Council  of  the  League  an  annual  report  in 
reference  to  the  territory  committed  to  its  charge.  The  degree 
of  authority,  control  or  administration  to  be  exercised  by  the 
Mandatory  was,  if  not  previously  agreed  upon  by  the  Members 
of  the  League,  to  be  explicitly  defined  by  the  Council.  A  perman- 
ent Commission  was  to  be  constituted  to  receive  and  examine 
the  annual  reports  of  the  Mandatories,  and  to  advise  the  Council 
on  all  matters  relating  to  the  observance  of  the  mandates.  The 
plan  of  making  the  protector  of  dependent  peoples  responsible 
to  an  organization  representative  of  the  States  constituting  the 
League,  and  as  a  trustee,  was  designed  to  prevent  abuse  of  power 

1  Art.  XXII  of  the  Covenant  of  the  League  of  Nations,  and  embraced  in 
the  Treaty  of  Versailles,  of  June  28,  1919. 

It  was  observed  that  "the  character  of  the  mandate  must  differ  according 
to  the  stage  of  the  development  of  the  people,  the  geographical  situation  of 
the  territory,  its  economic  conditions  and  other  similar  circumstances." 

^  It  was  declared  that  certain  commimities  belonging  to  the  Turkish  Empire 
had  reached  a  state  of  development  "where  their  existence  as  independent 
nations  can  be  provisionally  recognized  subject  to  the  rendering  of  adminis- 
trative advice  and  assistance  by  a  Mandatory  until  such  time  as  they  are 
able  to  stand  alone."  The  wishes  of  such  communities  should  be,  it  was 
said,  a  principal  consideration  in  the  selection  of  the  Mandatory. 

Other  peoples,  especially  those  of  Central  Africa,  were  said  to  be  "at  such 
a  stage  that  the  Mandatory  must  be  responsible  for  the  administration  of  the 
territory  under  conditions  which  will  guarantee  freedom  of  conscience  and  re- 
ligion, subject  only  to  the  maintenance  of  public  order  and  morals,  the  pro- 
hibition of  abuses  such  as  the  slave  trade,  the  arms  traffic  and  liquor  traffic 
and  the  prevention  of  the  Chtablishment  of  fortifications  or  military  and  naval 
bases  and  of  military  training  of  the  natives  for  other  than  police  purposes 
and  the  defense  of  territory,  and  will  also  secure  equal  opportunities  for  the 
trade  and  commerce  of  other  Memljors  of  the  Ijcague." 

Attention  was  called  to  other  territories,  such  as  Southv/est  Africa  and  cer- 
tain of  the  South  Pacific  Islands,  which,  owing  to  the  sparseness  of  their  popu- 
lation, or  their  small  size,  or  their  remoteness  from  the  centers  of  civilization, 
or  their  geographical  contiguity  to  the  territory  of  the  Mandatory,  and  other 
circumstances,  could,  it  was  declared,  be  best  administered  under  the  laws 
of  the  Mandatory  as  integral  portions  of  its  territory,  subject  to  safeguards 
previously  mentioned  in  the  interests  of  the  indigenous  population. 

39 


§  26]     CLASSIFICATION  OP  STATES  OF  INTERNATIONAL  LAW 

by  the  Mandatory,  and  to  assure  the  proper  performance  of  the 
trust.^ 

(7) 

§  27.  Certain  Minor  Impairments  of  Independence  through 
the  Medium  of  the  League  of  Nations. 
Events  of  The  World  War  impelled  the  Principal  Allied  and 
Associated  Powers  to  require-  that  certain  new  States  resulting 
from  the  conflict  should  be  subjected  to  a  slight  measure  of  external 
control  not  commonly  suffered  by  independent  States,  and  that 
such  control  should  be  exercised  for  the  collective  interests  of  all 
concerned  through  the  medium  of  the  League  of  Nations.  Both 
the  Czecho-Slovak  State  ^  and  Poland  ^  consented  in  the  Treaty 
of  Versailles  with  Germany,  of  June  28,  1919,  to  the  principle 
involved.  The  treaty  of  that  date  signed  in  behalf  of  the  United 
States,  the  British  Empire,  France,  Italy  and  Japan,  on  the  one 
hand,  and  Poland  on  the  other,  gave  effect  to  the  design.^  Poland 
there  accepted  as  its  fundamental  and  supreme  law  the  under- 
taking to  assure  full  and  complete  protection  of  life  and  liberty 
to  all  inhabitants  of  its  territory,  without  distinction  of  birth, 
nationality,  language,  race  or  religion,  and  to  accord  Polish  na- 
tionals belonging  to  racial,  religious  or  linguistic  minorities  the 
same  treatment  and  security  in  law  and  in  fact  as  that  accorded 
other  Polish  nationals.^  That  Republic  agreed,  moreover,  that 
the  latter  stipulations  should  constitute  obligations  of  international 
concern  and  should  be  placed  under  the  guarantee  of  the  League  of 
Nations,  that  any  member  of  the  Council  thereof  should  have  the 

1  It  will  be  recalled  that  on  May  24,  1920,  President  Wilson  requested  the 
Congress  to  grant  to  the  Executive  power  to  accept  for  the  United  States  a 
mandate  in  Armenia,  in  pursuance  of  a  formal  request  of  the  statesmen  in 
conference  at  San  Remo.  Cong.  Rec,  May  24,  1920,  Vol.  LIX,  No.  143, 
p. 8137. 

^  See  Conditional  Recognition,  infra,  §  38. 

^  Art.  86  ^  Art.  93. 

6  British  Treaty  Series,  No.  8  (1919),  Cmd.  223,  embracing  letter  of  M. 
Clemenceau,  President  of  the  Supreme  Council  of  the  Principal  AlHed  and 
Associated  Powers,  of  June  24,  1919,  to  M.  Paderewski,  President  of  the 
Polish  Republic,  adverting  to  the  fact  that  the  principles  applied  to  Poland 
and  Czecho-Slovakia  would  find  expression  also  in  treaties  with  Austria, 
Hungary  and  Bulgaria. 

8  Arts.  I,  II  and  VIII.  According  to  Art.  II  all  inhabitants  of  Poland  were 
to  be  entitled  to  the  free  exercise,  whether  public  or  private,  of  any  creed,  re- 
ligion or  belief,  the  practices  of  which  were  not  inconsistent  with  public  order  or 
public  morals.  Art.  VIII  provided  that  the  racial,  religious  or  linguistic 
minorities  of  Polish  nationals  should  have  an  equal  right  to  establi-sh,  manage 
and  control,  at  their  own  expense,  charitable,  religious  and  social  institutions, 
schools  and  other  educational  establishments,  with  the  right  to  use  their  own 
language  and  to  exercise  their  religion  freely  therein. 

40 


TURKEY  [§  28 

right  to  bring  to  the  attention  of  that  body  any  infraction  or  danger 
of  infraction  of  these  obhgations,  and  that  the  Council  might 
thereupon  take  such  action  and  give  such  direction  as  it  might 
deem  proper  and  effective  in  the  circumstances.^  This  treaty 
may  be  taken  as  typical  of  the  new  system  designed  to  respond 
to  actual  conditions  in  certain  States  of  Central  and  Eastern 
Europe.^  The  two  characteristics  w^hich  merit  special  attention 
are,  first,  the  disposition  of  the  controlling  Powers  of  Europe  to 
require  that  those  States,  regardless  of  their  affiliations  in  the  war, 
be  subjected  to  the  oversight  of  an  international  organization, 
and  secondly,  the  resulting  establishment  of  a  secondary  grade 
of  States  denied  certain  rights  of  political  independence  which 
are  the  common  possession  of  the  freest  States  of  the  interna- 
tional society,  such  as  the  United  States  or  France. 

(8) 
§  28.   Turkey. 

By  the  terms  of  the  treaty  of  peace  signed  at  Sevres,  August 
10,  1920,  Turkey  was  called  upon  to  subject  itself  to  a  condition 
of  dependence  upon  the  Principal  Allied  Powers  acting  in  certain 
matters  in  conjunction  with  the  League  of  Nations.     This  sub- 

1  See  Art.  XII,  where  it  was  also  agreed  by  Poland  that  these  obligations 
of  international  concern  should  not  be  modified  without  the  assent  of  a  ma- 
jority of  the  Council  of  the  League  of  Nations.  The  other  contracting  powers 
agreed,  however,  not  to  withhold  their  assent  from  any  modifications  of  the 
Articles  containing  these  stipulations,  which  were  in  due  form  assented  to  by  a 
majority  of  that  Council. 

See,  also,  Arts.  62-69  of  the  treaty  of  peace  with  Austria  of  September  10, 
1919,  Senate  Doc.  No.  92,  66  Cong.  1  Se.ss. ;  also  letter  of  M.  Clemenceau, 
President  of  the  Peace  Conference,  to  Dr.  Renner,  President  of  the  Austrian 
Delegation,  Sept.  2,  1919,  Senate  Doc.  No.  121,  66  Cong.,  1  Se.ss.,  p.  12. 

See,  also,  Chap.  I  of  the  treaty  between  the  Principal  Allied  and  Associated 
Powers  and  the  Serb-Croat-Slovene  State,  signed  at  Saint-Germain-en-Lave, 
Sept.  10,  1919,  Current  Hist.  Mag.,  XII,  No.  3,  546-547;  also  Arts.  49-57, 
of  treaty  of  peace  between  the  Allied  and  Associated  Powers  and  Bulgaria, 
signed  at  Neuilly-sur-Seine,  Nov.  27,  1919,  id.,  548-549. 

2  Declared  M.  Clemenceau,  in  his  note  to  M.  Paderewski,  of  June  24,  1919  : 
"It  is  indeed  true  that  the  new  treaty  differs  in  form  from  earlier  conventions 
dealing  with  similar  matters.  The  change  of  form  is  a  necessary  consequence 
and  an  essential  part  of  the  new  system  of  international  relations  which  is  now 
being  built  up  by  the  establishment  of  the  League  of  Nations.  Under  the 
older  system  the  guarantee  for  the  execution  of  similar  provisions  was  vested 
in  the  Great  Powers.  Experience  has  shown  that  this  was  in  practice  in- 
effective, and  it  was  also  open  to  the  criticism  that  it  might  give  to  the  Great 
Powers,  either  individually  or  in  combination,  a  right  to  interfere  in  the  in- 
ternal constitution  of  the  States  affected  which  could  be  used  for  political 
purposes.  Under  the  new  system  the  guarantee  is  entrusted  to  the  League 
of  Nations.  The  clauses  dealing  with  this  guarantee  have  been  carefully 
drafted  so  as  to  make  it  clear  that  Poland  will  not  be  in  any  way  under  the 
tutelage  of  those  Powers  who  are  signatories  to  the  treaty."  Brit.  Treatv 
Series,  No.  8  [Cmd.  223],  p.  2. 

41 


§  28]      CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

ordination  was  manifested,  for  example,  by  the  conditions  on  which 
the  Turkish  Government  and  His  Majesty  the  Sultan  were  to  be 
entitled  to  reside  in  Constantinople  and  there  maintain  the  capital 
of  the  Turkish  State,^  by  the  nature  of  the  provisions  establishing 
a  Commission  of  the  Straits,^  by  the  acceptance  of  an  Allied 
Financial  Commission  clothed  with  vast  powers  of  fiscal  oversight 
and  control  until  the  satisfaction  of  the  Turkish  pecuniary 
burden  imposed  by  the  treaty,^  and  by  the  mode  of  safeguarding 
the  civil,  political  and  religious  rights  of  minorities."* 

By  this  agreement,  apart  from  provisions  contemplating  the 
retention  of  extraterritorial  jurisdiction  by  the  Allied  and  other 
Powers,^  Turkey,  even  within  the  restricted  limits  of  its  territory, 
was  to  relinquish  rights  of  freedom  from  political  control  which 
are  the  common  possession  of  independent  States. 

d 
§  29.    Neutralized  States. 

The  common  interests  of  a  group  of  States  may  demand  that 
the  territory  of  one  of  their  number  be  isolated  from  belligerent 
operations,  and  that  it  itself  be  shielded  so  far  as  possible  from 
participation  therein.  Such  an  end  may  be  achieved  by  attaching 
to  the  State  thus  sought  to  be  protected  or  isolated,  a  status  of 
neutralization. 

A  State  is  neutralized  when,  in  return  for  a  guaranty  of  per- 
manent immunity  from  attack  given  by  other  States,  it  agrees 
to  relinquish  the  right  to  participate  in  war  except  in  defense  of 
its  territory.^     A  State  so  circumstanced  would  appear  to  lack 

1  Art.  36,  in  which  it  was  declared  that:  "Nevertheless,  in  the  event  of 
Turkey  failing  to  observe  faithfully  the  provisions  of  the  present  treaty,  or  of 
any  of  the  treaties  or  conventions  supplementary  thereto,  particularly  as 
regards  the  protection  of  the  rights  of  racial,  religious,  or  linguistic  minorities, 
the  Allied  Powers  expressly  reserve  the  right  to  modify  the  above  provision, 
and  Turkey  hereby  agrees  to  accept  any  disposition  which  may  be  taken  in 
this  regard." 

2  Arts.  37-61.     Cf.  The  Bosphorus  and  the  Dardanelles,  infra,  §  158. 
^  Part  VIII,  Financial  Clauses. 

Through  the  courtesy  of  the  Division  of  the  Near  East  of  the  Department 
of  State,  the  author  was  enabled  to  examine  the  text  of  the  treaty  in  October, 
1920. 

*  Part  IV,  Arts.  140-151.  According  to  Art.  151  the  Principal  Allied  Powers, 
in  consultation  with  the  League  of  Nations,  were  to  decide  what  measures 
might  be  necessary  to  guarantee  the  execution  of  the  provisions  of  this  Part. 
Moreover,  the  Turkish  Government  undertook  to  accept  all  decisions  which 
might  be  taken  on  the  subject. 

*  See  Art.  136  respecting  the  scheme  of  reform  to  replace  the  capitulary 
system  in  judicial  matters  in  Turkey. 

The  treaty  has  not  as  yet  been  ratified  by  Turkey. 

8  See,  in  this  connection,  Bonfils-Fauchille,  7  ed.,  §§  348-367,  with  extensive 

42 


NEUTRALIZED  STATES  [§  29 

the  right  to  destroy  its  status  without  the  consent  of  the  States 
participating  in  the  arrangement  of  guaranty.^ 

A  neutrahzed  State  suffers  no  infringement  of  the  right  generally 
to  conduct  its  f  reign  affairs  as  it  may  see  fit.  Its  independence 
is,  however,  impaired  to  the  extent  that  it  cannot  lawfully  commit 
any  act  or  conclude  any  agreement  inconsistent  with  the  duty 
to  abstain  from  war  or  not  to  render  abortive  the  scheme  of  neu- 
tralization.^ Thus  it  would  seem  to  be  precluded  from  concluding 
a  treaty  of  alliance,  or  of  guaranty,  or  even  a  convention  serving 
to  place  the  State  under  the  political  domination  of  a  neighboring 
power.^ 

In  the  course  of  the  nineteenth  century  Switzerland,  Belgium, 
Luxemburg  and  the  Independent  State  of  the  Congo  were  neu- 
tralized. Neutralization  was  impressed  upon  Switzerland  in 
consequence  of  the  declaration  of  the  Congress  of  Vienna,  March 
20,  1815,^  by  the  Act  of  Accession  of  the  Swiss  Cantons,  May 
27,  1815,^  and  by  the  Final  Act  of  the  Treaty  of  Paris  of  Novem- 
ber 20,  1815.^  Belgium  acquired  such  a  status  by  virtue  of  Ar- 
ticles VII  and  XXV  of  the  Treaty  of  London  of  November  15, 
1831,^  and  by  Article  I  of  the  Treaty  of  London,  April  19,  1839.« 
By  the  treaty  of  peace  of  June  28,  1919,  Germany,  recognizing 
that  the  treaties  which  had  established  the  neutralized  status  of 

bibliography;  Oppenhcim,  2  ed.,  I,  §§  95-101 ;  Aldo  Baldassarri,  La  Neutraliz- 
znzione,  Rome,  1912;  Emmanuel  Descamps,  L'Etat  Neutre  a  Titre  Permanent, 
Paris,  1912;  Cyrus  F.  Wicker,  Neutralization,  Oxford,  1911;  same  writer, 
"Some  Effects  of  Neutralization",  Ayn.  J.,  V,  639;  F.  W.  Baumgartner,  The 
Neutralization  of  States,  Ivingston,  Ontario,  1917. 

1  Bonfils-Fauchille,  7  ed.,  f  349. 

See  The  Protection  of  Areas  by  Neutralization  and  Other  Processes.  Inter- 
national Waterways,  infra,  §§  197-198. 

^  In  a  word,  the  effect  of  the  arrangement  of  neutralization  seems  to  deprive 
the  State  that  is  neutralized  of  common  rights  which  are  possessed  and  exer- 
cised by  independent  States  as  the  freest  members  of  the  international  society. 

^  In  correspondence  between  the  United  States  and  Belgium  concerning 
participation  by  the  latter  in  the  military  operations  of  the  Allied  powers  in 
China  in  1900,  Count  Lichtervelde  informed  Mr.  Hay,  Secy,  of  State,  Aug.  16, 
1900:  "Under  the  circumstances  which  will  govern  the  mission  of  that  body, 
we  cannot,  and  the  powers  in  interest  undoubtedly  will  not,  see  anything 
therein  that  could  possiblv  be  contrary  to  the  position  occupied  by  Belgium 
in  the  law  of  nations."  For.  Rel.  1900,  308,  309.  Belgium  was  a  party  to 
the  protocol  of  Sept.  7,  1901,  between  the  Allied  Powers  and  China.  For.  Rel. 
1901,  Appendix,  China,  312. 

*  Nouv.  Rec,  II,  157.  ^  Id.,  173. 

8  Id.,  734.  See  Paul  Schweizer,  Geschichte  der  Schweizerischen  Neutralitdt, 
Fraunfeld,  1895;  Rivier,  I,  111-117. 

''Nouv.  Rec,  XI,  390,  394,  404.  Belgium  was  not  itself  a  party  to  this 
treaty.  Concerning  events  leading  up  to  its  conclusion,  cf.  Frank  Lord  Warrin, 
Jr.,  "The  Neutrality  of  Belgium",  Dept.  of  State,  1918;  Ed.  Descamps,  La 
Neutralite  de  La  Belgique,  Brussels,  1902;  Ren6  Dollot,  Les  Origines  de  la 
Neutraliie  de  La  Belgique,  Paris,  1902. 

8  Nouv.  Rec,  XVI,  791. 

43 


§  29]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

Belgium  before  the  war  no  longer  conformed  to  the  requirements 
of  the  situation,  consented  to  their  abrogation.^  Events  of  the 
War  thus  served  to  free  Belgium  from  its  status  of  neutralization. 
Luxemburg  was  neutralized  by  virtue  of  Article  II  of  the  Treaty 
of  London  of  May  11,  1867.^  The  neutralization  of  the  Independ- 
ent State  of  the  Congo  was  accomplished  by  means  of  Article  X 
of  the  General  Act  of  the  Berlin  Conference,  February  26,  1885,^ 
and  by  the  acceptance  by  King  Leopold  II  as  head  of  that  State, 
of  the  terms  of  the  Act."*  The  State  was,  however,  annexed  by 
Belgium  by  the  treaty  of  November  28,  1907.^ 

1  Art.  XXXI.  2  ji^fn.  J.,  Ill,  Supp.,  118. 

3  Nouv.  Rec.  Gen.,  2  ser.,  X,  414,  419. 

"•  See  communication  of  Administrator  General  of  Dept.  of  For.  Affairs, 
Aug.  1,  1885,  U.  S.  For.  Rel.  1885,  59.  See,  also,  documents  in  Arn.  J.,  Ill, 
Supp.,  5-96. 

5  Noiiv.  Rec.  Gen.,  3  ser.,  II,  101-109;  Am.  J.,  Ill,  Supp.,  73.  P.  Fauchille, 
" L' Annexation  du  Congo  a  la  Belgique  et  le  droit  international" ,  Rev.  Gen.,  II, 
400. 

According  to  Art.  I  of  the  General  Act  of  Berlin,  of  June  14,  1889;  concluded 
by  the  United  States,  Great  Britain,  and  Germany,  the  Samoan  Islands  were 
to  be  ''neutral  territory  in  which  the  citizens  and  countries  of  the  Three 
Signatory  Powers  have  equal  rights  of  residence,  trade,  and  personal  protec- 
tion." For.  Rel.  1889,  353,  354.  The  convention  concluded  by  the  same 
Powers,  Dec.  2,  1899,  providing  for  the  partition  of  the  Islands,  declared  that 
all  previous  agreements  relating  to  Samoa  were  annulled.  For.  Rel.  1899,  665, 
667. 


44 


PERSONALITY  OF  MEMBERS  IS  NOT  RELINQUISHED      [§31 


STATES   IN   RELATION   TO   THEIR    STRUCTURE   AND 
COMPOSITION 

a 

§  30.   In  General. 

The  structure  of  a  State  is  not  necessarily  a  matter  of  inter- 
national concern.  Thus  whether  it  be  what  is  described  as  simple/ 
or  composite,^  is  unimportant.  Nor  is  the  mode  by  which  a  group 
of  political  entities  have  united  and  formed  a  person  of  inter- 
national law  a  matter  of  concern,  so  long  as  a  single  State  of  in- 
ternational law  has  resulted.  To  the  outside  world,  the  method 
by  which  the  United  States  came  into  being,  with  respect  at  least 
to  the  nature  of  its  statehood,  is  merely  a  matter  of  historic  in- 
terest. 


Unions  of  States 

(1) 

§  31.    Where    International    Personality   of   Members    Is 
Not  Relinquished. 

States  may  and  oftentimes  do  unite.  In  such  event  it  becomes 
a  matter  of  international  concern  whether  any  constituent  member 
of  the  new  State  has  retained  its  international  personality  by  not 
relinquishing  wholly  its  right  to  participate  in  foreign  affairs.  If 
such  be  the  case  the  union,  however  described,  is  in  a  strict  sense 
a  group  of  states  of  international  law  each  of  which  remains  to 
be  regarded  as  a  distinct  person  in  the  family  of  nations.  Unions 
of  such  a  kind  have  appeared  in  various  forms.  In  some  instances 
the  individual  members  have  retained  broadest  privileges,  re- 
ducing proportionally  the  importance  of  the  bond  uniting  them.^ 

1  "The  characteristic  of  the  simple  State  is  that  it  has  one  supreme  govern- 
ment, and  exerts  a  single  will,  whether  it  be  the  individual  will  of  a  sovereign 
ruler,  or  the  collective  will  of  a  popular  body  or  of  a  representative  assembly." 
Moore,  Dig.,  I,  21. 

2  "A  composite  State  is  one  composed  of  two  or  more  States."  Id.,  I,  22. 
It  may  be  noted  that  the  permanence  of  a  State  may  be  affected  by  the  nature 
of  its  structure.  Thus  a  composite  State  is  likely  to  find  that  its  durability 
is  jeopardized  by  reason  of  its  composition.  Nevertheless,  while  such  a  State 
holds  its  place  as  a  member  of  the  family  of  nations,  its  rights  as  such  are  not 
affected  by  that  circumstance. 

^  Thus  when,  in  1885,  the  King  of  the  Belgians  assumed  the  title  of  sovereign 
of  the  Independent  State  of  the  Congo,  that  State  and  Belgium,  remaining 

45 


§  31]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

In  others,  the  union  has  itself  predominated  in  importance,  not- 
withstanding the  definite  participation  in  foreign  affairs  enjoyed 
by  its  constituents.^  In  still  others,  that  predominance  has  been 
such  as  to  leave  to  the  individual  member  slight  although  tech- 
nical freedom  to  deal  with  the  outside  world,  and  to  present 
accordingly  for  all  practical  purposes  a  united  front  in  international 
affairs.  The  German  Empire  under  the  constitution  of  April  16, 
1871,  is  illustrative.^  While  the  several  States  comprising  it 
retained  rights  to  enable  them  technically  to  preserve  their  in- 
dividual membership  in  the  family  of  nations,  to  the  outside 
world  it  was  the  German  Empire  —  the  Bundesstaat  —  which 
was  of  chief  significance.^  It  may  be  said  to  have  attained  it- 
separate  and  distinct,  were  united  only  by  reason  of  their  having  the  same 
monarch.  The  rehitionship  constituted  what  has  been  described  as  a  personal 
union.  See  letter  of  Iving  Leopold  to  President  Cleveland,  Aug.  1,  1885,  For. 
Rel.  1885,  58. 

Cf.  also  the  relationship  between  Great  Britain  and  Hanover,  1714-1837,  as 
described  by  Coleridge,  C.  J.,  in  Isaacson  v.  Durant,  17  Q.  B.  D.  54,  59. 

Westlake  refers  to  the  advance  from  a  personal  union  to  one  where  "the 
rules  of  succession  in  the  two  monarchies  may  be  assimilated  to  one  another, 
so  as  to  exclude  the  chance  of  the  crowns  being  separated  by  their  operation  ", 
decliring  that  "this  was  done  for  Austria  and  Hungary  by  the  Pragmatic 
Sanction  of  1723,  which  provided  for  the  succepsion  of  Maria  Theresa  in  both 
countries  in  accordance  with  the  Hungari;  n  rule,  while  enacting  the  x\ustrian 
exclusion  of  females  as  the  rule  in  both  countries  thereafter."  He  notes  also 
the  situation  where  "the  common  sovereign,  instead  of  habituallv  taking 
international  action  for  his  countries  separately,  may  habitually  unite  them 
in  his  international  action,  so  that  the  one  being  at  war  while  the  other  is 
at  peace  becomes  a  contingency  which,  though  theoretically  possible,  is  not 
dreamed  of  in  practical  politics  so  long  as  the  crowns  continue  to  rest  on  the 
same  head."     Int.  Law,  2  ed.,  I,  32-33. 

1  The  German  Confederation,  1815-1866,  may  be  taken  as  illustrative. 
See  Dana's  Wheaton,  §§  47-51.     This  union  was  described  as  a  Staatenbund. 

2  See  Edwin  H.  Zeydel,  "Constitutions  of  the  German  Empire  and  German 
States",  Dept.  of  State,  confidential  document,  1919;  also  Karl  Binding, 
Deutsche  Staatsgrundgesetze,  1, 18 ;  U.  S.  For.  Rel.  1S71,  383-393 ;  id.,  1877,  183. 

^  Declared  Prof.  Moore,  in  1906:  "The  several  [German]  States  preserve 
the  right  of  legation;  they  grant  exequaturs  to  foreign  consuls  within  their 
territories,  although  all  German  consuls  are  sent  out  by  the  Empire;  they 
may  enter  into  conventions  with  foreign  powers  concerning  matters  not  within 
the  competence  of  the  Empire  or  of  the  Emperor,  and  within  the  limits  fixed 
by  the  laws  of  the  Empire;  they  may  conclude  concordats  with  the  Holy  See. 
On  the  other  hand,  by  the  constitution  of  1871,  the  laws  of  the  Empire  are 
within  their  proper  sphere  supreme.  There  is  one  citizenship  for  all  Germany, 
and  all  Germans  in  foreign  countries  have  equal  claims  upon  the  protection 
of  the  Empire.  The  supervision  of  the  Empire  and  its  legislature  comprehends, 
among  other  things,  the  right  of  citizenship;  the  issuing  and  examination 
of  passports;  the  surveillance  of  aliens;  colonization  and  emigration;  cus- 
toms duties  and  commerce;  coinage,  and  the  emission  of  paper  money; 
foreign  trade  and  navigation,  and  consular  representation  abroad ;  and  the 
imperial  army  and  navy.  The  Emperor  represents  the  Empire  among  na- 
tions; enters  into  alliances  and  other  conventions  with  foreign  countries; 
sends  and  receives  ambassadors ;  and  declares  war  and  concludes  peace  in  the 
name  of  the  Empire,  with  the  proviso,  however,  that  for  a  declaration  of  war, 
the  consent  of  the  federal  council  is  required,  except  in  case  of  '  an  attack  upon 
the  territory  of  the  confederation  or  its  coasts.'"     Dig.,  I,  25. 

46 


PERSONALITY  OF  MEMBERS  IS  NOT  RELINQUISHED      [§  31 

self  the  status  of  a  person  of  international  law,  notwithstanding 
the  character  of  its  constituent  members. 

The  German  Republic  under  the  constitution  adopted  at  Weimar, 
July  31,  1919,  appeared  to  indicate  the  welding  together  of  a 
still  closer  union  such  that  the  constituent  States  almost  com- 
pletely relinquished  their  international  personalities  for  the  sake 
of  the  national  entity.  Thus  the  Republic  became  practically 
if  not  technically  the  only  State  of  international  law  within  the 
limits  of  its  domain.^ 

The  establishment  of  the  Swiss  Confederation  under  the  con- 
stitution of  i\Iay  29,  1874,^  did  not  deprive  the  constituent  Can- 
tons of  an  international  personality.  They  retained  the  right 
to  conclude  certain  minor  and  specified  classes  of  agreements 
with  foreign  States,  such  as  those  respecting  "  the  administration 
of  public  property  and  border  and  police  intercourse."  ^  All 
separate  alliances  and  all  treaties  of  a  political  character  between 
the  Cantons  were  forbidden.^  To  the  Confederation  was  entrusted 
the  "  sole  right  of  declaring  war  or  making  peace,  and  of  con- 
cluding alliances  and  treaties  with  foreign  powers,  particularly 
treaties  relating  to  tariffs  and  commerce."  ^  Official  intercourse 
between  the  Cantons  and  foreign  governments,  or  their  represent- 

'  According  to  Art.  VI,  the  Government  of  the  RepubHc  was  given  the 
exchisive  right  of  legislation  over  foreign  relations.  Art.  XLV  declared  that 
the  President  should  represent  the  Republic  in  matters  of  international  law, 
that  he  should,  in  the  nation's  name,  conclude  alUances  and  other  treaties 
with  foreign  powers,  and  that  he  should  accredit  and  receive  ambassadors. 
The  declaration  of  war  and  conclusion  of  peace  were  to  be  subject  to  national 
law.  Alliances  and  treaties  with  foreign  States,  in  relation  to  subjects  covered 
by  national  law,  were  to  require  the  approval  of  the  Reichstag.  Art.  LXXVIII 
announced  that  the  relations  with  foreign  States  concerned  the  nation  ex- 
clusively. It  was  there  provided,  however,  that  in  matters  regulated  by  pro- 
vincial law,  the  confederated  States  might  conclude  treaties  with  foreign 
States.  These  treaties  were,  however,  to  require  the  consent  of  the  nation. 
Agreements  with  foreign  States  regarding  change  of  national  boundaries  were 
to  be  concluded  by  the  nation  on  consent  of  the  State  involved.  In  order  to 
a.ssure  the  representation  of  interests  arising  for  special  States  through  their 
special  economic  relations  or  their  proximity  to  foreign  countries,  the  Govern- 
ment was  to  decide  on  the  measures  and  arrangements  required  in  concert 
with  the  States  involved. 

In  March,  1920,  the  Department  of  State  reported  the  announcement  of 
the  abolishment  of  the  Ministry  of  Foreign  Affairs  by  Bavaria,  as  part  of  a 
movement  towards  greater  centralization  of  the  Government  at  Berlin. 

-  For  an  English  translation  of  the  federal  constitution  of  the  Swiss  Con- 
federation, see  "Old  South  Leaflets",  General  Series,  No.  18,  reprinted  as 
Appendix  II  to  "Government  in  Switzerland",  by  John  Martin  Vincent,  New 
York,  1900.  See,  also,  Die  Schweizerische  Bundesgesetzqebunq ,  Basel,  1890- 
1891,  edited  by  Prosper  Wolf.  Also  in  this  connection,  S.  B.  Crandall,  Treaties, 
Their  Making  and  Enforcement,  2  ed.,  §  148. 

3  Art.  IX.  "  Art.  VII. 

'  Art.  VIII.  By  an  Act  of  Jan.  22,  1892,  matters  of  extradition  were  placed 
in  the  hands  of  the  Federal  Council  which  was  authorized  to  conclude  treaties 

47 


§  31]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

atives,  was  to  take  place  through  the  Federal  Council  of  the  Con- 
federation.^ To  the  outside  world  Switzerland  appeared  to  take 
its  stand  as  itself  a  State  of  international  law  endowed  with  the 
right  of  controlling  generally  the  foreign  affairs  of  the  several 
Cantons,  notwithstanding  the  retention  of  statehood  by  the 
latter. 

(2) 

§  32.     Where   International   Personality   of  Members  Is 
Relinquished. 

The  terms  of  the  union  between  two  or  more  States  may  result 
in  or  demand  the  entire  relinquishment  by  the  constituent  mem- 
bers of  all  right  to  deal  with  the  outside  world.  In  such  case 
the  union  becomes  a  person  or  State  of  international  law  of  which 
the  composition  is  a  matter  of  unconcern  to  foreign  powers. 
They  recognize  the  completeness  of  the  merger,  and  while  it  lasts, 
necessarily  regard  as  non-existent  the  former  States  which  surren- 
dered their  international  personality.  The  Austro-Hungarian 
Monarchy  created  in  1867  by  a  union  of  the  Empire  of  Austria 
and  the  Kingdom  of  Hungary  was  illustrative.  Thereafter  until 
its  dissolution,  the  Dual  Monarchy  was  a  State  of  international 
law,  and  the  only  State  of  that  character  to  represent  externally 
its  constituent  parts.^ 

As  a  result  of  the  World  War  the  Serb,  Croat  and  Slovene 
peoples  of  the  former  Austro-Hungarian  Monarchy  united  of 
their  own  free  will  with  Serbia  in  a  permanent  union  for  the  pur- 
pose of  forming  "  a  single  sovereign  independent  State  under 
the  title  of  the  Kingdom  of  the  Serbs,  Croats  and  Slovenes."  ^ 

with  foreign  States.  Brit,  and  For.  State  Papers,  LXXXIV,  671.  An  extra- 
dition treaty  was  concluded  with  the  United  States,  May  14,  1900.  Malloy's 
Treaties,  II,  1771.  i  Art.  X. 

2  That  by  the  Act  of  Union  of  Austria  and  Hungary,  each  of  those  States 
retained  the  right  to  approve  of  treaties  pertaining  to  it,  was  not  at  variance 
with  the  circumstance  that  externally  the  Dual  Monarchy  was  a  person  of 
international  law,  and  that  the  countries  comprising  it  were  not.  Neither 
of  the  latter  was  permitted  to  enter  into  foreign  relations  or  to  maintain  an 
international  personality. 

See,  also,  in  this  connection,  S.  B.  Crandall,  Treaties,  Their  Making  and 
Enforcement,  2  ed.,  §  142,  and  documents  there  cited. 

In  1896,  the  Republics  of  Honduras,  Nicaragua,  and  Salvador  united  in 
forming  a  "single  political  entity,  for  the  exercise  of  their  sovereignty  as  regards 
their  intercourse  with  foreign  nations  ",  which  was  known  as  the  Greater  Re- 
public of  Central  America.  See  text  of  treaty  of  union,  of  June  20,  1895, 
For.  Rel.  1896,  390.  Concerning  the  dissolution  in  1898  of  the  union  which 
had  assumed  the  name  of  the  Republic  of  the  United  States  of  Central  America, 
see  For.  Rel.  1898,  172-178. 

'  See  preamble  of  treaty  between  the  Principal  Allied  and  Associated 
Powers,  and  the  Serb-Croat-Slovene  State,  signed  at  Saint-Germain-en-Laye, 
Sept.  10,  1919,  British  Treaty  Series,  1919  [Cmd.  4611. 

48 


COUNTRIES  LACKING  EUROPEAN  CIVILIZATION     [§  33 

It  suffices  to  observe  that,  regardless  of  the  description  of  such 
a  union/  the  family  of  nations  is  concerned  solely  with  the  result 
effected,  namely,  the  single  political  entity  asserting  an  inter- 
national personality  which  has  supplanted  for  purposes  of  state- 
hood the  several  constituents  which  were  thus  welded  together. 


§  33.     Countries  Not  Possessed  of  European  Civilization. 

The  existence  and  observance  of  principles  of  an  international 
system  of  law  designed  to  govern  the  members  of  the  society  of 
nations,  is  due  to  the  circumstance  that  there  is  a  common  civili- 
zation possessed  by  and  familiar  to  each  of  them,  and  which 
enables  each  to  regulate  its  conduct  in  accordance  with  the  de- 
mands made  upon  all.  Thus  what  are  known  as  the  States  of 
international  law,  notwithstanding  the  sharp  differences  between 
some  of  them,  resemble  each  other  in  the  possession  of  what  is 
described  as  European  civilization.  This  is  none  the  less  true 
despite  the  completeness  of  the  occasional  failure  of  particular 
States  under  certain  conditions  to  respond  to  the  requirements 
of  that  civilization.^ 

The  situation  is  otherwise  with  respect  to  countries  not  pos- 
sessed of  and,  therefore,  unfamiliar  with  European  civilization. 
This  is  true  whether  they  are  essentially  uncivilized,  or  enjoy  a 
civilization  which,  however  tested,  fails  habitually  to  enable 
the  possessors  to  meet  the  standards  accepted  by  the  States  con- 
stituting the  international  society.  Such  failure  commonly  mani- 
fests itself  in  the  inability  to  accord  the  requisite  protection  of 
foreign  life  and  property,  and  in  abuses  of  what  are  known  as 
rights  of  jurisdiction.^ 

With  such  countries  the  States  of  international  law,  neverthe- 
less, find  it  expedient  to  hold  diplomatic  intercourse ;  and  the 

^  Thus  the  Austro-Hungarian  Monarchy  was  described  as  a  "real  union." 
Moore,  Dig.,  I,  22. 

Concerning  the  United  States  as  a  federal  union,  see  J.  B.  Scott.  The 
United  States  of  America  :  A  Study  in  International  Organization,  New  York, 
1920,  Chap.  Ill,  and  documents  there  quoted. 

"  The  Equality  of  Independent  States,  supra,  §  11. 

The  temporary  loosening  of  restraints  rigidly  demanded  by  that  civiliza- 
tion does  not,  however,  necessarily  indicate  total  incapacity  to  respect  its  pre- 
cepts, even  though  the  State  which  suffers  such  a  breakdown  may,  during  the 
period  of  its  impotence,  be  subjected  to  external  restraint  and  demoted  in 
rank. 

'  See,  for  example,  the  participation  by  the  Inaperial  Government  of  China 
in  the  so-called  Boxer  uprising  in  that  country  in  1900.  In  this  connection, 
see  President  McKinley,  Annual  Message,  Dec.  3, 1900,  For.  Rel.  1900,  xii-xiii. 

49 


§  33]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

capacity  of  the  former  to  exercise  rights  of  property  and  control 
over  territory  which  they  occupy  is  usually  recognized.  It  is 
not,  however,  deemed  to  be  incompatible  with  such  conduct  to 
withhold  from  such  countries  full  rights  of  statehood.^  So  long 
as  they  lack  the  capacity  or  disposition  to  accept  the  burdens  of 
European  civilization,  at  least  in  what  pertains  to  the  outside 
world,  the  States  of  international  law  demand  and  secure,  as  is 
elsewhere  observed,^  the  yielding  of  important  rights  of  jurisdic- 
tion which  are  never  relinquished  by  the  territorial  sovereign  of  a 
full-fledged  and  independent  member  of  the  family  of  nations. 

When,  however,  any  country  previously  not  possessed  of  Eu- 
ropean civilization,  attains  in  the  course  of  its  normal  develop- 
ment the  stage  where  it  is  both  capable  and  desirous  of  observing 
in  its  external  relations  the  full  requirements  of  international  law 
even  as  applied  to  foreign  persons  and  property  within  its  domain, 
the  society  of  nations  is  not  disposed  longer  to  withhold  the 
privileges  of  statehood.  Japan  has  furnished  an  impressive  in- 
stance. Its  recognition  not  only  as  a  State  of  international  law, 
but  also  practically  as  one  of  the  Powers  of  the  first  order,  re- 
sulted from  a  transformation  wrought  in  barely  fifty  years.^ 

In  1856,  Turkey  was  admitted  to  membership  in  the  international 
society  for  certain  purposes,  although  the  leading  members  of 
it  remained  unwilling  to  yield  to  Turkey  full  rights  of  jurisdiction 
over  resident  aliens.'* 

Certain  countries  still  regarded  as  unpossessed  of  European 
civilization  enjoy  great  international  significance  by  reason  of 

^  "The  European  and  American  States  maintain  diplomatic  intercourse  and 
conclude  treaties  with  them  [Morocco,  Turkey,  Muscat,  Persia,  Siam  and 
China],  they  regard  their  territories  as  being  held  by  titles  of  the  same  kind 
as  those  by  which  they  hold  their  own,  and  when  at  war  with  them  they  re- 
gard the  laws  of  war  as  being  reciprocally  binding  just  as  ]:>etween  themselves. 
But  the  civilisation  of  those  countries  differs  from  that  of  the  Christian  world 
in  such  important  particulars,  especially  in  the  family  relations  and  in  the 
criminal  law  and  in  its  administration,  that  it  is  deemed  necessary  for  Euro- 
peans and  Americans  among  them  to  be  protected  by  the  enjoyment  of  a  more 
or  less  separate  system  of  law  under  their  consuls."  Westlake,  2  ed.,  I,  40. 
^  Extraterritorial  Jurisdiction,  infra,  §§  259-200. 

^  See  treaty  between  the  Unitecl  States  and  Japan  of  Nov.  22,  1894,  in  re- 
vision of  previous  agreements,  Malloy's  Treaties,  I,  1028;  Imperial  rescript 
on  the  new  treaties  of  Japan,  June  30,  1899,  For.  Rel.  1899,  4G9.  See,  also, 
Moore,  Dig.,  V,  758-762,  and  documents  there  cited,  referring  to  acts  on  the 
part  of  Japan  recognizing  principles  of  international  law  prior  to  its  admission 
to  full  membership  in  the  family  of  nations.  CJ.  Holland,  Studies,  112-129; 
S.  Takahashi,  Cases  on  International  Law  during  the  Chino-Japanese  War ; 
John  W.  Foster,  American  Diplomacy  in  the  Orient,  344-364. 

"  By  Art.  VII  of  the  Treaty  of  Paris  of  March  30,  1856,  the  signatory  parties 
comprising  Great  Britain,  France,  Russia,  Sardinia,  Austria  and  Turkey 
"declare  the  Sublime  Porte  admitted  to  participate  in  the  advantages  of  the 
public  law  and  system  of  Europe."     Nouv.  Rec.  Gen.,  XV,  770. 

50 


THE   INTERNATIONAL  ORGANIZATION  OF  STATES     [§  34 

their  geographical  extent  and  relationship  to  the  territories  of 
other  States,  and  on  account  of  the  volume  of  their  foreign  trade: 
China  is  one  of  these. ^ 

The  requirements  of  European  civilization  are  not  to  be  re- 
garded beyond  the  reach  of  any  country  which  is  zealous  to  meet 
them.  Nor  is  any  with  which  diplomatic  relations  are  held 
to  be  deemed  permanently  incapacitated  for  statehood.  The 
requisite  degree  of  internal  development  must  be  looked  upon  as 
the  normal  achievement  to  be  expected  of  a  country  brought 
within  close  and  familiar  contact  with  enlightened  foreign  States. 
For  that  reason  the  United  States  has,  on  occasion,  expressed 
in  a  formal  treaty  a  readiness  to  aid  a  country  lacking  the 
requisite  conformity  to  European  civilization  yet  strongly 
desirous  of  reforming  its  judicial  system,  and  has  held  out  to  it 
the  hope  of  the  relinquishment  of  extraterritorial  privileges  when 
conditions  should  warrant  such  action.^ 


4 

§  34.   The  International  Organization  of  States. 

Ever  since  its  birth  as  a  nation  the  United  States  has  witnessed 
endeavors  to  weld  States  into  international  organizations  for  a 
variety  of  common  purposes.^  In  numerous  instances  the  at- 
tempts have  been  successful,  especially  where  the  identity  of 
interest  of  enlightened  States  generally  has  been  recognized, 
and  the  nature  of  the  organized  effort  to  advance  it  has  not  been 

^  It  may  be  noted  that  China,  as  well  as  Siam  and  Persia,  were  each  par- 
ticipants in  the  Hague  Peace  Conferences  of  1899  and  1907. 

2  Art.  XV  of  treaty  with  China  of  Oct.  8,  1903,  Malloy's  Treaties,  I,  261, 
269.  The  progress  of  Siam  since  the  beginning  of  the  twentieth  century  has 
been  marked.  See  treaty  between  Siam  and  France  of  Feb.  13,  1904,  For. 
Rel.  1905,  835;  also  treaty  between  Siam  and  Denmark  of  March  24,  1905, 
id.,  839. 

By  the  Treaty  of  Peace  of  Versailles  of  June  2S,  1919,  Germany  recognized 
that  all  contractual  rights  of  extraterritorial  jurisdiction  in  Siam  were  termi- 
nated as  from  July  22,  1917.  Art.  135.  Austria  in  the  treaty  of  peace  of 
September,  1919,  made  like  acknowledgment.     Art.  110. 

On  December  16,  1920,  there  was  signed,  on  behalf  of  the  United  States  and 
Siam,  a  treaty  providing  for  the  complete  relinquishment  of  rights  of  extra- 
territorial jurisdiction  by  the  former  in  the  territory  of  the  latter,  five  years 
after  the  promulgation  by  Siam  of  a  series  of  judicial  codes  to  which  reference 
was  made,  and  for  the  conditional  relinquishment  of  those  rights  pending  the 
lapse  of  that  interval. 

3  See,  in  this  connection,  Paul  S.  Reinsch,  Public  International  Unions, 
2  ed.,  Boston,  1916;  L.  S.  Woolf,  International  Government,  London,  1916; 
F'rancis  Bowes  Savre,  Experiments  in  International  Administration,  New 
York,  1919;  J.  B.  Scott,  United  States  of  America,  New  York,  1920.  Also 
documents  in  Moore,  Dig.  (under  heading  of  "International  Cooperation"), 
II,  466-480. 

51 


§  34]     CLASSIFICATION  OF  STATES  OF  INTERNATIONAL  LAW 

calculated  to  produce  serious  friction.^  Under  such  conditions 
the  United  States  has  oftentimes  lent  its  cooperation  as  a  partici- 
pant.^ 

The  relation  of  international  law  to  the  organization  of  States 
is  a  matter  to  be  observed  without  reference  to  questions  of  na- 
tional policy  touching  the  expediency  of  participation  in  particular 
arrangements,  and  regardless  of  the  efficacy  of  special  plans  de- 
vised for  the  achievement  of  a  desired  end.  The  establishment 
of  an  international  organization  may,  however,  give  rise  to  prob- 
lems of  an  essentially  legal  character  affecting  both  participating 
and  non-participating  States.  Those  pertaining  to  the  former 
are  the  natural  products  of  the  arrangement  creating  the  organ- 
ization, involving  interpretative  inquiry,  for  example,  as  to  the 
power  of  a  central  representative  body  to  legislate  for,  or  other- 
wise bind,  the  several  constituent  members.^  Those  pertaining 
to  the  latter  are  of  a  different  kind.  They  raise  the  question  to 
what  extent  the  States  comprising  the  organization  may  through 
their  united  action  modify  the  rights  or  enlarge  the  obligations 
of  non-participating  States,  and  incidentally  compel  them  to 
unite  with  the  organization.  Thus  the  inquiry  may  present  it- 
self whether  the  effect  of  the  establishment  of,  and  participation 
in,  the  organization  is  to  clothe  its  members  collectively  with 
rights  in  relation  to  the  outside  world  which  they  previously  as 
individual  States  did  not  possess.  The  solution  must  be  sought 
in  those  principles  of  international  law  which  always  afford  the 
test  of  the  propriety  of  intervention,  and  which  are  discussed 
elsewhere.'*    It  suffices  here  to  observe  that  the  United  States 

^  This  has  been  true  in  the  case  of  the  Universal  Postal  Union.  For  the 
text  of  the  general  international  postal  convention  signed  at  Rome,  May  26, 
1906,  see  Brit,  and  For.  State  Pap.,  XCIX,  254;  Nouv.  Rec.  Gen.,  3  ser.,  I,  355. 

^  In  two  distinctly  American  international  public  organizations,  the  Pan- 
American  Union,  and  the  International  High  Commission  (which  resulted 
from  the  recommendation  of  the  First  Pan  American  Financial  Conference 
of  1915),  the  United  States  has  been  an  active  and  interested  participant. 
Concerning  the  latter  see  W.  G.  McAdoo,  "The  International  High  Commission 
and  Pan  American  Cooperation",  Am.  J.,  XI,  772.  See,  also,  the  International 
Sanitary  Convention  signed  at  Paris,  Jan.  17,  1912,  and  of  which  the  ratifica- 
tion was  advised  by  the  Senate  of  the  United  States,  Feb.  19,  1913,  Charles' 
Treaties,  390. 

*  Since  the  outbreak  of  The  World  War,  questions  of  international  adminis- 
trative policy  through  governmental  organization  have  engrossed  the  atten- 
tion of  statesmen  and  publicists.  Modes  of  expressing  a  collective  will 
through  an  appropriate  agency  and  of  legislative  action  through  a  central 
body  have  been  discussed  and  analyzed.  The  expediency  of  conferring  large 
governmental  powers  upon  such  a  body,  as  well  as  the  effect  of  such  action 
upon  the  freedom  of  States  uniting  in  the  concession,  have  been  much  debated. 
There  has  been  wide  comment  as  to  the  efficacy  of  definite  proposals  and  as 
to  the  significance  of  conventions  recording  them. 

*  See  Intervention,  In  General,  infra,  §  69;    The  League  of  Nations  and 

52 


THE  INTERNATIONAL  ORGANIZATION  OF  STATES       [§  3 

is  as  yet  far  from  admitting  that  a  legal  obligation  rests  upon  it 
to  become  a  member  of  any  international  organization  in  whicli 
for  any  reason  it  is  deemed  inexpedient  to  participate,  and  that 
it  has  refrained  from  asserting  that  any  organization  not  represent- 
ative of  substantially  the  entire  membership  of  the  international 
society  may  lawfully  impress  fresh  obligations  upon  non-partici- 
pating States  without  their  consent. 

States  may  doubtless  agree  to  organize  for  purposes  of  inter- 
national government,  and  to  that  end,  as  in  the  case  of  the  League 
of  Nations,  confer  a  large  measure  of  authority  upon  a  central 
body,  empowering  it  to  restrict  in  various  ways  the  normal  free- 
dom of  action  of  the  several  members.^  It  must  be  apparent 
that  regardless  of  the  feasibility  of  the  design,  the  yielding  of 
such  a  concession  implies  no  inequality  on  the  part  of  the  grantor 
States  with  respect  to  each  other.  This  is  true  although  extrinsic 
agreements  among  the  members  may  serve  to  clothe  the  League 
with  powers  subjecting  a  contracting  party  to  subordination,  and 
depriving  it  of  certain  rights  of  political  independence  retained  by 
the  group  of  States  comprising  the  most  favored  members.-  The 
degree  to  which  the  member  States  within  that  group  have  in 
fact  by  the  terms  of  the  Covenant  restricted  their  own  freedom 
of  action,  is  not  yet  regarded  by  non-participants  such  as  the 
United  States  as  marking  authoritatively  the  requirements  of 
the  international  society,  or  as  indicating  that  its  interests  oppose 
the  retention  by  each  State  of  what  has  not  thus  been  relinquished. 

Intervention,  infra,  §84;  Rights  of  Independence  during  Existence,  infra, 
§52. 

1  See,  for  example.  Arts.  VIII-XVI  of  the  Covenant,  contained  in  the  treaty 
of  peace  with  Germany  of  June  28,  1919. 

It  may  be  noted  that  according  to  Art.  XXIV :  "  There  shall  be  placed  under 
the  direction  of  the  League  all  international  bureaux  already  established  by 
general  treaties  if  the  parties  to  such  treaties  consent.  All  such  international 
bureaux  and  all  commissions  for  the  regulation  of  matters  of  international 
interest  hereafter  constituted  shall  be  placed  under  the  direction  of  the  League.' ' 

*  Certain  Minor  Impairments  of  Independence  through  the  Medium  of  the 
League  of  Nations,  supra,  §  27. 


53 


PART    II 

NORMAL   RIGHTS  AND   DUTIES  OF  STATES 

TITLE   A 
RIGHTS  OF  POLITICAL  INDEPENDENCE 


§  35.   The  Right  to  Become  a  State  of  International  Law. 

The  birth  of  a  State  of  international  law  may  be  due  to  one  of 
many  causes.  Thus  it  may  be  attributable  to  the  revolution  of 
a  colony,  or  to  the  secession  of  "the  inhabitants  occupying  a  por- 
tion of  the  territory  of  a  State,  or  to  the  determination  of  a  con- 
trolling group  of  powers  to  establish  and  recognize  a  new  State 
within  territory  previously  belonging  to  an  existing  State. 

When  a  political  entity  or  country  is  possessed  of  a  people 
occupying  a  well-defined  territory,  and  a  government  exercising 
control  therein  and  free  to  enter  into  foreign  relations,  it  has 
attained  the  likeness  of  a  State  and  may  in  a  broad  sense  be 
deemed  to  be  one.  Such  a  State,  nevertheless,  finds  itself  unable 
by  virtue  of  its  own  acts  to  enjoy  fullest  rights  of  intercourse  with 
the  several  members  of  the  family  of  nations,  and  so  to  \We  the  life 
of  a  State  of  international  law,  until  they  acquiesce  and  permit 
it  to  do  so.  This  is  true  although  the  birth  of  its  state  life  pre- 
cedes in  point  of  time,  and  is  not,  therefore,  technically  dependent 
upon  external  acknowledgment.^ 

^  "The  position  of  the  new  State  in  relation  to  the  international  system  is 
not  one  of  admission  into  a  society.  This  is  the  fundamental  error  into  which 
Huber  and  a  great  manj^  other  writers  have  fallen,  and  as  long  as  this  view  per- 
sists we  cannot  understand  the  true  relationship.  When  the  new  State  has 
come  into  being  there  is,  as  has  heretofore  been  pointed  out,  an  indeterminate 
situation  in  the  existing  international  order.  From  the  purely  juristic  stand- 
point, the  whole  subsequent  relationship  between  the  new  State  and  the  exist- 
ing system  is  an  attempt  to  reestablish  the  legal  continuity.  The  most  potent 
argument  in  favor  of  the  participation  of  the  new  State  itself  in  this  process 
is  the  fact  that  the  period  between  its  existence  as  a  State  from  the  point  of 
view  of  its  internal  constitution  and  the  so-called  recognition  by  third  States 
cannot  be,  as  far  as  policy  is  concerned,  a  period  totally  devoid  of  law.  To 
accept  the  doctrine  of  creative  recognition  is  to  deny  this  proposition.  A 
protracted  period  without  law  in  the  international  sense  would  mean  what 

55 


§  36]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

2 
RECOGNITION 

a 

§  36.   In  General. 

Recognition  has  been  defined  as  the  "  assurance  given  to  a  new 
State  that  it  will  be  permitted  to  hold  its  place  and  rank,  in  the 
character  of  an  independent  political  organism,  in  the  society  of 
nations."  "  The  rights  and  attributes  of  sovereignty  "  are  said 
to  **  belong  to  it  independently  of  all  recognition  ",  although  "  it 
is  only  after  it  has  been  recognized  that  it  is  assured  of  exercising 
them."  1 

When  a  country  has  by  any  process  attained  the  likeness  of  a 
State  and  proceeds  to  exercise  the  functions  thereof,  it  is  justified 
in  demanding  recognition.^  There  appears  to  be  no  disposition 
to  withhold  it  provided  the  fact  be  established  that  the  requisite 
elements  of  state  life  are  present, and  give  promise  of  remaining. 
The  method  by  which  a  new  State  comes  into  being  may,  however, 
have  an  effect  upon  the  time  when  recognition  is  accorded. 

outlawry  means  in'  private  law,  that  the  new  political  entity  might  be  sub- 
jected to  violence  at  the  hands  of  other  States  and  in  general  be  treated  as 
beyond  the  pale,  without  such  treatment  being  in  any  way  a  violation  of  the 
international  obligation  of  the  third  State."  Julius  Goebel,  Jr.,  The  Recogni- 
tion Policy  of  the  United  States,  New  York,  1915,  60. 

^  Moore,  Dig.,  I,  72,  adverting  to  Rivier,  I,  57,  where  it  is  added  :  "Recogni- 
tion is  therefore  useful,  even  necessary  to  the  new  State.  It  is  also  the  con- 
stant usage,  when  a  State  is  formed,  to  demand  it.  Except  in  consequence 
of  particular  conventions,  no  State  is  obliged  to  accord  it.  But  the  refusal 
may  give  rise  to  measures  of  retorsion.  When,  after  the  formation  of  the 
ffingdom  of  Italy,  certain  German  States  persisted  in  refusing  to  recognize  it. 
Count  Cavour  withdrew  the  exequaturs  of  their  consuls.  Recognition  was 
then  accorded." 

See,  in  general,  Moore,  Dig.,  I,  72-248,  and  documents  there  cited;  Julius 
Goebel,  Jr.,  The  Recognition  Policy  of  the  United  States  (with  bibliography). 
New  York,  1915 ;  A.  P.  C.  Griffin,  List  of  References  on  Recognition  in  Inter- 
national Law  and  Practice,  Washington  (Library  of  Congress),  1904;  Memo- 
randum on  The  Method  of  "Recognition"  of  Foreign  Governments  and 
Foreign  States  by  the  Government  of  the  United  States,  1789-1897,  by  A.  H. 
Allen,  Chief  of  Bureau  of  Rolls  and  Library,  Department  of  State,  Senate 
Doc.  No.  40,  54  Cong.,  2  Sess. ;  Memorandum  upon  the  Power  to  Recognize 
the  Independence  of  a  New  Foreign  State,  presented  bj'  Mr.  Hale  in  the 
Senate  Jan.  11,  1897,  Senate  Doc.  No.  56,  54  Cong.,  2"^Sess. ;  Frederic  L. 
Paxson,  The  Independence  of  the  South-American  Republics,  Philadelphia, 
1903;  Frederick  Waymouth  Gibbs,  Recognition,  London,  1863;  The  Recog- 
nition of  the  Confederate  States,  by  Jm-idicus,  Charleston,  1863;  George 
Bemis,  Hastv  Recognition  of  Rebf^l  Bflligerencv,  Boston,  1865. 

Also,  Bonfils-Fauchille,  7  ed.,  §§  19.5-213;  Dana's  Wheaton,  Dana's  Note 
No.  16;  Hershev,  115-128  (with  bibliographv) ;  Higgins'  7  ed.  of  Hall, 
§§  26-27;  Oppenheim,  2  ed.,  I,  §§  71-75;  Rivier,  I,  57-61;  Westlake,  2  ed., 
I.  49-58. 

-  Mr.  Adams,  Secv.  of  State,  to  the  President,  Jan.  28,  1819,  Am.  State 
Papers,  For.  Rel.,  IV,  413,  Moore,  Dig.,  I,  79. 

56 


MODE  OF  RECOGNITION  [§  37 

There  can  be  no  ground  for  withholding  recognition  of  a  new 
State  whose  life  is  due  to  a  peaceable  dissolution  of  a  previous 
union,  as  in  the  case  of  Norway  and  Sweden  in  1905.^ 

"When  the  demand  for  recognition  comes  from  a  State  whose 
very  existence  is  due  to  revolution,  foreign  powers  act  with  de- 
liberation. This  is  because  premature  recognition  is  regarded 
by  the  parent  State  as  an  act  of  intervention,  and  oftentimes, 
therefore,  as  a  cause  of  war.-  It  has  been  found,  moreover,  that 
a  State  resulting  from  revolution  commonly  seeks  recognition 
before  the  conflict  is  at  an  end,  and  that  it  may  do  so  even  when 
its  territory  is  infested  with  hostile  and  unbeaten  armies. 

b 

§  37.    Mode  of  Recognition. 

The  mode  of  according  recognition  is  not  material,  provided 
there  be  an  unequivocal  act  indicating  clearly  that  the  new  State 
is  dealt  with*  as  such  and  is  deemed  to  be  entitled  to  exercise  the 
privileges  of  statehood  in  the  society  of  nations.^     The  entering 

1  See  documents  concerning  the  dissolution  of  the  Union  between  the  King- 
doms of  Sweden  and  Norway,  in  For.  Rel.  1905,  853-874,  and  especialh'  tele- 
gram of  Mr.  Root,  Secy,  of  State,  to  the  Norwegian  Minister  of  Foreign 
Affairs,  Oct.  30,  1905,  id.,  865;  and  communication  of  Mr.  Root  to  the  Swed- 
ish Minister  at  Washington,  No.  362,  Nov.  8,  1905,  id.,  866. 

"There  can  be  no  reason  for  refusing  to  recognize  a  federated  State,  formed 
by  the  union  of  recognized  States,  such  as  the  German  Empire  in  1871  and 
the  North  German  Confederation  in  1863;  or  as  Switzerland  in  1848,  after 
the  confederation  of  States  became  a  federated  State.  For  those  States,  being 
sovereign,  had  the  incontestable  right  to  bind  themselves  together  by  a  federal 
bond.  It  was  a  matter  which  concerned  them,  and  did  not  concern  third 
powers."     J.  B.  Moore,  in  Moore,  Dig.,  I,  72. 

2  This  was  true  in  the  case  of  the  United  States.  Attempts  were  made  to 
secure  recognition  in  1776.  It  was  not,  however,  until  the  news  of  Burgoyne's 
defeat  at  Saratoga  in  1777  reached  Europe,  that  France  recognized  and  con- 
tracted with  the  new  Republic.  This  conduct  was  understood  by  France 
itself  as  being  nothing  less  than  intervention.  At  that  time  it  was  doubtless 
true  that  continental  statesmen  did  not  believe  that  international  law  con- 
templated any  lawful  recognition  of  a  new  State  born  of  revolution  prior 
at  least  to  its  recognition  by  the  parent  State.  Julius  Goebel,  Jr.,  The  Recog- 
nition Policy  of  the  United  States,  92-93.  See,  also,  Edward  S.  Corwin, 
French  Policy  and  the  American  Alliance  of  1778,  Princeton,  1916. 

'  "The  recognition  of  Texas  as  an  independent  power  may  be  made  by  the 
United  States  in  various  ways  :  First,  by  treaty ;  second,  by  the  passage  of  a 
law  regulating  commercial  intercourse  lietween  the  two  powers;  third,  bj' 
sending  a  diplomatic  agent  to  Texas  with  the  usual  credentials;  or,  lastlj'-, 
by  the  Executive  receiving  and  accrediting  a  diplomatic  representative  from 
Texas,  which  would  be  a  recognition  as  far  as  the  Executive  only  is  competent 
to  make  it.  In  the  first  and  third  modes  the  concurrence  of  the  Senate  in 
its  executive  character  would  l>e  necessary,  and  in  the  second  in  its  legis- 
lative character."  Report  of  Mr.  Clay,  Committee  on  Foreign  Relations, 
Senate,  June  18,  1836,  Sen.  Ex.  Doc.  406,  24  Cong.,  1  Sess.,  Moore,  Dig., 
I,  96,  97. 

57 


§  37]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

into  a  formal  diplomatic  or  conventional  relationship  is  conduct 
of  such  a  character.^ 

Recognition  may  be  collective.  Thus  the  Treaty  of  Berlin  of 
1878,  to  which  Great  Britain,  Germany,  Austria,  P>ance,  Italy, 
Russia  and  Turkey,  were  signatories,  registered  the  collective 
recognition  of  Montenegro,  Servia  and  Roumania.^ 

Again,  the  treaty  concluded  in  behalf  of  the  Allied  and  Asso- 
ciated Powers  with  the  Polish  Republic  in  June,  1919,  contained 
in  its  preamble  a  collective  confirmation  of  the  prior  acts  of  those 
Powers  in  according  to  Poland  recognition  as  a  new  State.^ 


§  38.    Conditional  Recognition. 

States  are  free  to  accord  recognition  on  such  terms  as  they 
may  see  fit  to  impose.  A  group  of  States  contemplating  col- 
lective recognition  may  lay  down  those  which  it  deems  impera- 
tive. According  to  the  Treaty  of  Berlin  of  1878,  Bulgaria  was 
recognized  as  an  autonomous  and  tributary  principality  of  the 
Sultan  of  Turkey,  but  with  a  Christian  government  and  a  national 
militia ;  Servia  and  Roumania  were  recognized  subject  to  the 
condition  that  complete  religious  toleration  should  prevail  within 
the  territories  of  those  countries;  and  in  the  case  of  Roumania, 
the  further  condition  was  imposed  that  certain  specified  territory 
should  be  restored  to  Russia.'* 

If  the  terms  on  which  recognition  is  conceded  be  violated  by  the 
new  State,  the  group  of  States  according  recognition  may  assert 
the  right  to  intervene  for  the  purpose  of  establishing  a  state  of 
affairs  in  accordance  with  the  condition  specified.^     Experience 

^  As  Hall  states:  "Any  act  is  sufficient  which  clearly  indicates  inten- 
tion. .  .  .  Again  the  official  reception  of  diplomatic  agents  accredited  by  the 
new  State,  the  despatch  of  a  minister  to  it,  or  even  the  grant  of  an  exequatur 
to  its  consul,  affords  recognition  by  necessary  implication."  Higgins'  7  ed., 
gg_S9 

2  Arts.  XXVI,  XXXIV  and  XLIII,  Noiw.  Rec.  Gen.,  2  ser..  Ill,  458,  4G0 
and  462,  respectively;  Holland,  The  European  Concert  in  The  Eastern  Ques- 
tion, 277  and  following. 

See,  also,  treaty  concluded  by  Great  Britain,  Austria,  France,  Prussia  and 
Russia,  with  Belgium,  Nov.  15,  iS31,  with  respect  to  the  separation  of  Belgium 
from  Holland,  Brit,  and  For.  State  Pap.,  XVIII,  645. 

3  See  text  contained  in  British  Treaty  Series  No.  8,  1919  [Cmd.  223];  also 
communication  of  M.  Clemenceau,  as  President  of  the  Peace  Conference,  to 
M.  Paderewski,  Premier  of  Poland,  in  transmitting  the  treatj^  to  the  latter, 
June  24,  1919,  id. 

*  Arts.  I,  V,  XXXIV,  XXXV  and  XLIII-XLV.  Nouv.  Rec.  Gen.,  2  ser.,  Ill, 
451,  453,  460  and  462-463,  respectively.  See,  also,  Holland,  The  European 
Concert  in  The  Eastern  Question,  277. 

^  "The  meaning  of  such  conditional  recognition  is  not  that  recognition  can 
be  withdrawn  in  case  the  condition  is  not  complied  with.     The  nature  of  the 

58 


PRIOR  TO  RECOGNITION  BY  PARENT  STATE       [§  40 

has  shown,  however,  that  the  exercise  of  such  a  right  is  Hkely  to 
be  ineffective.  Consequently  a  new  system  has  been  devised  and 
apphed  with  reference,  as  has  been  observed,  to  certain  of  the 
newer  States  of  Europe,  as  in  the  treaty  of  June  28,  1919,  between 
the  Principal  Associated  and  Allied  Powers,  on  the  one  hand,  and 
Poland  on  the  other. ^ 

It  has  been  observed  that  European  and  other  States  have 
found  it  possible  to  maintain  diplomatic  relations  with  coun- 
tries not  possessed  of  or  attached  to  that  civilization  which  is 
commonly  described  as  European,  without  recognizing  those 
countries  for  all  purposes  as  States  of  international  law.^ 

d 
Time  of  According  Recognition  to  a  New  State  Produced 

by  Revolution 

(1) 
§  39.   After  Recognition  by  Parent  State. 

The  recognition  by  the  parent  State  of  its  former  colony  which 
by  force  of  arms  has  attained  independence  and  won  such  respect 
therefor,  justifies  other  States  in  taking  similar  action.  Under  such 
circumstances  their  conduct  cannot  be  regarded  as  premature.^ 

(2) 
§  40.   Prior  to  Recognition  by  Parent  State. 

When  recognition  by  foreign  States  precedes  that  accorded  by 
the  parent  State,  complaint  on  the  part  of  the  latter  is  to  be  an- 

thing  makes  recognition,  if  once  given,  incapable  of  withdrawal.  But  con- 
ditional recognition,  if  accepted  by  the  new  State,  imposes  the  internationally 
legal  duty  upon  such  State  of  complying  with  the  condition;  failing  which  a 
right  of  intervention  is  given  to  the  other  party  for  the  purpose  of  making 
the  recognised  State  comply  with  the  imposed  condition."  Oppenheim,  2  ed., 
I,  §  73. 

Cf.,  also,  statement  in  Moore,  Dig.,  I,  73,  from  Rivier,  I,  60. 

^  States,  Certain  Minor  Impairments  of  Independence  through  the  Medium 
of  the  League  of  Nations,  supra,  §  27. 

2  States,  Countries  Not  Possessed  of  European  Civilization,  supra,  §  33. 

3  Mr.  Adams,  Secy,  of  State,  to  Mr.  Anduaga,  Spanish  Minister,  April  6, 
1822,  Am.  State  Pap'.  For.  Rel.,  IV,  846,  Moore,  Dig.,  I,  87. 

"While  Spain  maintained  a  doubtful  contest  with  arms  to  recover  her 
dominion,  it  was  regarded  as  a  civil  war.  When  that  contest  became  so  mani- 
festly desperate  that  Spanish  viceroys,  governors,  and  captain-generals  thern- 
selves  concluded  treaties  with  the  insurgents,  virtually  acknowledging  their 
independence,  the  United  States  frankly  and  unreservedly  recognized  the  fact, 
without  making  their  acknowledgment  the  price  of  any  favor  to  themselves, 
and  although  at  the  hazard  of  incurring  the  displeasure  of  Spain."  Mr.  Adams, 
Secy,  of  State,  to  Mr.  Anderson,  Minister  to  Colombia,  May  27,  1823,  MS. 
Inst,  to  U.  S.  Ministers,  IX,  274,  282,  283,  Moore,  Dig.,  I,  89. 

59 


§  40]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

ticipated.^  Nevertheless,  the  opinion  has  long  prevailed  in  tlie 
United  States  that  the  propriety  of  recognition  is  not  necessarily 
dependent  upon  the  approval  of  such  State.  In  harmony  with 
the  theory  early  advocated  by  Jefferson  respecting  the  recognition 
of  new  governments,^  it  has  long  been  the  accepted  American 
doctrine  that  the  right  to  accord  recognition  depends  solely  on 
the  circumstance  whether  a  new  State  has  in  fact  come  into  being, 
and  that  the  test  of  the  existence  of  that  fact  is  whether  the  con- 
flict with  the  parent  State  has  been  substantially  won.^  State- 
ments of  principle  ha\'e  not  always  drawn  a  sharp  line  of  distinc- 
tion between  the  time  when  the  cause  of  the  parent  State  was 
desperate  or  hopeless,  and  that  when  the  contest  was  at  an  end.^ 

1  "The  law  of  nations  does  not  undertake  to  fix  the  precise  time  at  which 
recognition  shall  or  may  be  extended  to  a  new  State.  This  is  a  question  to 
be  determined  by  each  State  upon  its  own  just  sense  of  international  rights 
and  obligations;  and  it  has  rarely  happened,  where  a  new  State  has  been 
formed  and  recognized  within  the  limits  of  an  existing  State  that  the  parent 
State  has  not  complained  that  the  recognition  was  premature."  Mr.  Hay, 
Secy,  of  State,  to  General  Reyes,  Colombian  Envoy,  Jan.  5,  1904,  For.  Rel. 
1903,  294,  Moore,  Dig.,  Ill,  90. 

^  Recognition  of  New  Governments,  infra,  §  44. 

'  "In  every  question,  relating  to  the  Independence  of  a  Nation,  two  prin- 
ciples are  involved,  one  of  right  and  the  other  oi  fact.  The  former  exclusively 
depending  upon  the  determination  of  the  Nation  itself,  and  the  latter  result- 
ing from  the  successful  execution  of  that  determination.  .  .  .  Under  these 
circumstances,  the  Government  of  the  United  States,  far  from  consulting  the 
dictates  of  a  policy  questionable  in  its  morality,  has  yielded  to  an  obligation 
of  duty  of  the  highest  order,  by  recognizing  as  Independent  States,  Nations, 
which,  after  deliberately  asserting  their  right  to  that  character,  had  main- 
tained and  established  it,  against  all  the  resistance  which  had  been  or  could 
be  brought  to  oppose  it.  This  Recognition  is  neither  intended  to  invalidate 
any  right  of  Spain,  nor  to  affect  the  emploj^ment  of  any  means  which  she  may 
yet  be  disposed  or  enabled  to  use,  with  the  view  of  reuniting  those  Provinces 
to  the  rest  of  her  Dominions.  It  is  the  mere  acknowledgment  of  existing 
facts,  with  the  view  to  the  regular  establishment  with  the  Nations  newly 
formed,  of  those  relations,  political  and  commercial,  which  it  is  the  moral 
obligation  of  Civilized  and  Christian  Nations  to  entertain  reciprocally  with  one 
another."  Mr.  Adams,  Secv.  of  State,  to  Don  Joaquin  de  Anduaga,  Spanish 
Minister  at  Washington,  April  6,  1822,  Brit,  and  For.  State  Pap.,  IX,  754,  755. 

^  "But  there  is  a  stage  in  such  contests  when  the  parties  struggling  for  inde- 
pendence have,  as  I  conceive,  a  right  to  demand  its  acknowledgment  by  neutral 
parties,  and  when  the  acknowledgment  may  be  granted  without  departure 
from  the  obligations  of  neutrality.  It  is  the  stage  when  independence  is  es- 
tablished as  a  matter  of  fact  so  as  to  leave  the  chances  of  the  opposite  party 
to  recover  their  dominion  utterly  desperate.  The  neutral  nation  must,  of 
course,  judge  for  itself  when  this  period  has  arrived."  Mr.  Adams,  Secv.  of 
State,  to  the  President,  Aug.  24,  ISIS.  Monroe  MSS.,  Dept.  of  State,  Moore, 
Dig.,  I,  78. 

See,  also.  Report  of  Mr.  Clav,  from  Senate  Committee  on  Foreign  Relations, 
June  18,  1836,  Senate  Ex.  Doc.  406,  24  Cong.,  1  Sess.,  Moore,  Dig.,  I.  96; 
President  Jackson,  message  concerning  Texas,  Dec.  21,  1836,  Richardson's 
Messages,  Moore,  Dig.,  I,  98;  Mr.  Forsvth,  Secv.  of  State,  to  Mr.  Castillo, 
March  17,  1837,  MS.  Notes  to  Mexican  Legation,  VI,  71,  Moore,  Dig.,  I.  102; 
President  Grant,  Annual  Message,  Dec.  7,  1875,  For.  Rel.  1875,  I,  vii-viii, 
Moore,  Dig.,  I,  107;  President  IVIcKinley,  special  message,  April  11,  1898, 
For.  Rel.  1898,  750,  Moore,  Dig.,  I,  108. 

60 


PRIOR  TO  RECOGNITION  BY  PARENT  STATE       [§  40 

The  point  to  be  observed  is,  however,  that  the  right  of  recognition, 
according  to  American  theory,  depends  upon  a  fact,  namely,  the 
success  of  the  revolutionary  force,  and  that  regardless  of  the 
illegitimacy  thereof  in  the  eyes  of  the  parent  State. ^  Thus 
recognition  based  upon  careful  regard  for  such  a  fact  is  deemed  to 
be  consistent  with  the  maintenance  of  friendly  relations  between 
the  recognizing  State  and  the  parent  State,  and  as  not  reasonably 
provocative  of  war. 

The  according  of  recognition  to  a  country  still  in  the  throes  of 
warfare  against  the  parent  State  partakes  of  a  different  character. 
Such  action  constitutes  participation  in  the  conflict.  It  makes 
the  cause  of  independence  a  common  one  between  the  aspirant 
for  it  and  the  outside  State.  Participation  must  be  regarded  as 
intervention,  and  therefore  essentially  antagonistic  to  that  State. 

Thus  the  rightfulness  of  recognition  depends  in  each  case  upon 
its  unlikeness  to  participation  in  the  conflict.  When  the  struggle 
is  over  and  independence  won,  recognition  bears  no  resemblance 
to  such  conduct.  On  principle,  the  test  should  always  be 
whether  the  contest  is  practically  at  an  end.  As  there  may  be 
great  difficulty  in  ascertaining  with  precision  when  such  a  moment 
has  arrived,  the  wisdom  of  allowing  an  interval  to  elapse  between 
the  termination  of  the  struggle  and  the  according  of  recognition 
is  apparent.  The  deliberation  of  States  in  this  regard  is,  however, 
due  to  a  sense  of  expediency  rather  than  to  one  of  duty.  As  soon 
as  a  revolting  colony  has  in  fact  gained  its  independence  and  at- 
tained the  qualifications  for  statehood,  the  according  of  recognition 
is  not  at  any  time  thereafter  to  be  deemed  premature.^ 

^  If  the  position  taken  by  Secretary  Seward,  with  respect  to  the  much 
dreaded  recognition  by  Great  Britain  and  France  of  the  Confederacy  appears 
to  be  at  variance  with  the  previous  attitude  of  the  Department  of  State,  it 
must  be  recalled  that  the  conflict  was  raging  at  the  time  when  he  expressed 
himself,  and  that  no  de  facto  control  exercised  at  any  time  by  the  Confederate 
forces  over  any  territory  remained  unchallenged  or  proved  to  be  capable  of 
maintenance.  The  Civil  War  was  not  terminated  until  it  was  brought  to  a 
close  by  force  of  the  Union  arms.  Therefore,  it  is  believed  that  at  any  stage 
thereof  the  United  States  might  fairly  have  regarded  recognition  of  the  Con- 
federacy as  a  State  as  an  act  of  intervention.  See,  in  this  connection,  Mr. 
Seward,  Secy,  of  State,  circular  to  all  Ministers  of  the  United  States,  March  9, 
1861,  Dip.  Cor.  1861,  32,  Moore,  Dig.,  I,  104;  Mr.  Seward,  Secy,  of  State, 
to  Mr.  Adams,  American  Minister  at  London,  April  10,  1861,  Dip.  Cor.  1861, 
71,  79,  Moore,  Dig.,  I,  105. 

2  The  people  of  Panama,  by  a  bloodless  revolution,  November  3  and  4,  1903, 
declared  themselves  independent  of  Colombia.  For.  Rel.  1903,  230-240. 
On  November  2  and  5,  1903,  the  commanders  of  American  naval  vessels  near 
the  Isthmus  were  ordered  to  maintnin  free  and  uninterrupted  tran.'jit  across 
the  same,  to  prevent  the  'anding  of  any  armed  force  with  hostile  intent  whether 
Colombian  or  insurgent  at  any  point,  to  prevent  the  landing  of  a  Colombian 
force  reported  to  be  approaching  the  Isthmus,  if  such  landing  would  precipitate 

61 


§  40]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

The  recognition  by  the  United  States  of  Poland  in  January,  1919, 
is  fairly  illustrative  of  the  principle  involved.^  Poland  then  pos- 
sessed in  fact  the  attributes  of  sovereignty,  exercising  supremacy 
within  certain  territorial  areas,  although  the  extent  of  the  limits 
thereof  was  a  matter  of  controversy.  No  duty  on  the  part  of 
the  United  States  with  respect  to  Germany  or  Austria-Hungary 
forbade  recognition,  while  the  freedom  of  the  new  Republic  from 
actual  domination  by  Russia  removed  from  the  act  of  recognition 
a  character  to  be  regarded  as  hostile  to  that  country.^  It  remained, 
however,  for  the  Peace  Conference  at  Paris  to  adjust  the  bounda- 
ries of  the  new  State,  and  to  prescribe  requisite  cessions  to  it,  as 
well  as  to  establish  its  relations  with  Danzig.^ 

a  conflict,  to  make  every  effort  to  prevent,  in  the  interest  of  peace,  Colombian 
troops  at  Colon  from  proceeding  to  Panama,  and  to  prevent  the  recurrence 
of  a  (reported)  bombardment  of  Panama  by  a  Colombian  gunboat.  On 
November  6,  the  United  States  recognized  the  independence  of  Panama. 
Mr.  Hay,  Secy,  of  State,  to  Mr.  Ehrman,  Vice-Consul-General,  Nov.  6,  1903, 
id.,  233 ;  Same  to  Mr.  Beaupre,  American  Minister,  same  date,  id.,  240.  On 
November  13,  Senor  Bunau-Varilla,  Minister  of  Panama,  presented  his  letters 
of  credence  to  the  President  of  the  United  States.  Id.,  245.  A  treaty  between 
the  United  States  and  Panama  was  signed  at  Washington,  November  18. 
Malloy's  Treaties,  II,  1349.  The  part  taken  by  the  United  States  was  one 
of  intervention.  Its  conduct  was  so  described  and  acknowledged  by  President 
Roosevelt.  For.  Rel.  1903,  272-273.  The  case  is,  therefore,  without  value 
as  a  precedent  with  regard  to  the  time  when  the  recognition  of  the  statehood 
of  a  country  attaining  independence  by  revolution  may  be  justly  accorded. 

See  President  Roosevelt,  remarks  on  occasion  of  presentation  of  letters  of 
credence  by  the  Minister  from  Panama,  Nov.  13,  1903,  For.  Rel.  1903,  246; 
President  Roo.sevelt,  Annual  Message,  Dec.  7,  1903,  id.,  vii,  xxxvi ;  President 
Roosevelt,  special  message,  Jan.  4,  1904,  id.,  260,  272-273,  276-277;  General 
Reves  Colombian  Envov,  to  Mr.  Hav,  Secv.  of  State,  Dec.  23,  1903,  id.,  284, 
288-290;  Same  to  Same',  Jan.  6,  1904,  id.,  .306;  Same  to  Same,  Jan.  11.  1904, 
id.,  311 ;  Mr.  Hay,  Secy,  of  State,  to  General  Reyes,  Colombian  Envoy,  Jan.  5, 
1904,  id.,  294.  The  messages  of  President  Roosevelt,  and  the  Hay-Reyes 
correspondence  are  contained  in  Moore,  Dig.,  Ill,  46-113. 

Cf.  Diplomatic  History  of  the  Panama  Canal,  submitted  by  President 
Wilson  to  the  Senate  April  23,  1914  (embracing  documents  compiled  bv  De- 
partment of  State),  Senate  Doc.  No.  474,  63  Cong.,  2  Sess. 

See,  also,  Shelby  M.  Cnllom,  "The  Panama  Situation",  The  Independent, 
LV,  2787;  Theodore  S.  Woolsey,  "The  Recognition  of  Panama  and  Its  Re- 
sults", Green  Bag,  XVI,  6;  G.  G.  Phillimore  in  Law  Magazine  and  Retriew, 
XXIX,  212;  G.  W.  Scott,  "Was  the  Recognition  of  Panama  a  Breach  of 
International  Morality",  The  Outlook,  LXXV,  947;  W.  C.  Dennis,  "The 
Panama  Situation  in  the  Light  of  International  Law  ",  Am.  Laxo  Reg.,  LII,  265. 

1  Official  Bulletin,  III,  No.  525,  Jan.  30,  1919,  containing  communication 
of  Mr.  Landng,  Secy,  of  State,  to  Mr.  Paderewski,  Polish  Premier.  See, 
also,  Dept.  of  State  commnniqne  for  the  Press,  No.  1,  April  24,  1920,  concern- 
ing the  recognition  the  previous  day  by  the  United  States  of  the  de  facto 
Government  of  the  Armenian  Republic. 

2  The  preamble  of  the  treaty  between  the  Associated  and  Allied  Powers, 
on  the  one  hand,  and  Poland,  on  the  other,  of  June  28,  1919,  adverted  to  the 
fact  that  by  a  proclamation  of  March  30,  1917,  the  Government  of  Russia 
assented  to  the  reestabli^hment  of  an  independent  Polish  State. 

^  Part  III,  Section  VHI  of  treaty  of  peace  with  Germanv,  of  June  28,  1919. 
See,  also,  treatv  concluded  bv  the  Associated  and  Allied  Powers  with  Poland. 
June  28,  1919,  British  Treaty  Series  No.  8,  1919  [Cmd.  223]. 

62 


RECOGNITION,  BY  WHOM  DETERMINABLE         [§  41 

The  recognition  by  the  United  States  in  September,  1918,  of 
the  Czecho-Slovak  National  Council  as  a  de  facto  belligerent 
government,  and  the  announcement  simultaneously  of  a  readi- 
ness to  enter  into  formal  relations  with  it,  is  to  be  regarded  as  a 
form  of  belligerent  activity  incidental  to  the  prosecution  of  the 
war  then  existing  against  Germany  and  Austria-Hungary,  rather 
than  as  illustrative  of  the  exercise  of  the  right  of  recognition  as 
such.^ 


§  41.   Recognition,  by  Whom  Determinable. 

The  recognition  of  a  foreign  State  is  a  matter  peculiarly  within 
the  province  of  the  political  as  distinct  from  the  judicial  depart- 
ment of  the  government.  The  position  taken  by  the  former  is 
rigidly  followed  by  the  latter.  As  Sir  William  Grant  expressed  it 
in  1809: 

It  always  belongs  to  the  government  of  the  country'  to  de- 
termine in  what  relation  any  other  country  stands  towards  it ; 
that  is  a  point  upon  which  courts  of  justice  cannot  decide.^ 

Such  is  the  position  of  the  courts  of  the  United  States.^ 

^  Concerning  the  recognition  by  the  United  States  of  the  Czecho-Slovaks, 
see  announcement  of  Mr.  Lansing,  Secv.  of  State,  Official  Bulletin,  Sept.  3, 
191S,  Vol.  II,  Xo.  402;   Editorial  Comment,  Am.  J.,  XIII,  93. 

C/.,  also,  note  of  Mr.  Lansing,  Secy,  of  State,  to  Mr.  Ekengren,  Swedish 
Minister  at  Washington,  concerning  the  unwillingness  of  the  United  States 
to  accept  the  mere  autonomy  of  the  Czecho-Slovaks  and  the  Jugo-Slavs  as  a 
basis  for  peace  with  Austria-Hungary,  Oct.  18,  1918,  Official  Bulletin,  Oct.  19, 
1918,  Vol.  II,  No.  441. 

See  text  of  Declaration  of  Independence  of  the  Czecho-Slovak  Nation 
adopted  bv  its  provisional  government  at  Paris,  Oct.  18,  1918,  Official  Bulletin, 
Oct.  19,  1918,  Vol.  II,  No.  441;  Waldes  v.  Basch,  179  N.  Y.  Supp.  713.  Also 
Art.  81  of  the  treaty  of  peace  of  June  28,  1919,  by  which  Germany,  "in  con- 
formity with  the  action  already  taken  by  the  Allied  and  Associated  Powers" 
recognized  the  complete  independence  of  the  Czecho-Slovak  State  which  in- 
cluded the  autonomous  territory  of  the  Ruthenians  to  the  south  of  the  Car- 
pathians. 

"^  The  Pelican,  Edw.  Admr.,  Append.  D. 

^  "The  conduct  of  the  foreign  relations  of  our  Government  is  committed 
by  the  Constitution  to  the  Executive  and  Legislative  —  '  the  poUtical '  — 
Departments  of  the  Government,  and  the  propriety  of  what  may  be  done  in 
the  exercise  of  this  political  pov\'er  is  not  subject  to  judicial  inquiry  or  decision." 
Clarke,  J.,  in  the  opinion  of  the  Court  in  Oetjen  v.  Central  Leather  Co.,  246 
U.  S.  297,  302. 

See,  also,  Emperor  of  Austria  v.  Day,  3  De  G.  F.  and  J.,  217,  221,  233; 
Republic  of  Peru  v.  Peruvian  Guano  Co.,  36  Ch.  Div.  489,  497;  Republic  of 
Peru  V.  Dreyfus,  38  Ch.  Div.  348;  Taylor  v.  Barclay,  2  Sim.  213;  Rose  v. 
Himely,  4  Cranch,  241,  272;  Kennett  v.  Chambers,  14  How.  38;  Luther  v. 
Borden,  7  How.  1 ;  Foster  v.  Neilson,  2  Pet.  253,  307 ;  Gelston  v.  B.o\\,  3 
Wheat.  246,  324;  ITnited  States  v.  Palmer,  3  Wheat.  610,  634;  The  Nueva 
Anna,  6  WTieat.  193 ;  The  Three  Friends,  166  U.  S.  1 :  Fifield  v.  Insurance 
Co.,  47  Penn.  St.  166,  172. 

63 


§  41]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

As  a  matter  of  domestic  practice,  in  the  case  of  the  United  States, 
recognition  has  been  accorded  by  the  President  in  some  cases 
following  cooperation  with  the  Congress,  and  in  others  independ- 
ently thereof.^ 

f 

§  42.  Acts  Falling  Short  of  Recognition  of  a  New  State. 
^  The  holding  of  intercourse  with  agents  of  a  revolutionary 
body  does  not  necessarily  signify  that  it  is  accorded  recognition 
as  a  State.  Whether  a  particular  act  possesses  such  a  character 
depends  partly  upon  whether,  as  has  been  seen,  it  is  in  defiance 
of,  or  at  variance  with,  the  pretensions  of  any  third  State  claiming 
a  right  of  domination.  Certain  forms  of  intercourse  are  clearly 
of  such  a  kind.^  Others  may  be  equivocal  in  point  of  character. 
They  may,  for  example,  justify  although  not  compel  the  infer- 
ence that  they  are  in  derogation  of  the  rights  of  a  parent  State. 
In  such  case  their  exact  significance  must  depend  upon  the  inten- 
tion of  the  actor.  Still  other  acts  are  in  no  sense  equivocal,  and  are 
not  to  be  regarded  as  involving  recognition.  Thus  the  holding 
of  unofficial  communication  with  a  country  struggling  for  inde- 
pendence and  claiming  to  have  won  it,  does  not  imply  acknowledg- 
ment of  the  existence  of  a  new  State.  Nor  does  the  sending  un- 
officially to  such  a  country  of  agents  in  order  to  gain  information 
therein  or  for  purposes  requiring  no  formal  diplomatic  intercourse, 
possess  greater  significance.^  Dealings  with  revolutionary  au- 
thorities in  actual  control  of  territory  within  which  foreign  persons 

^  Declares  Prof.  Moore  :  "In  every  case,  as  it  appears,  of  a  new  government 
and  of  belligerency,  the  question  of  recognition  was  determined  solely  by  the 
Executive.  In  the  case  of  the  Spanish  American  republics,  of  Texas,  of  Hayti, 
and  of  Liberia,  the  President,  before  recognizing  the  new  state,  invoked  the 
judgment  and  cooperation  of  Congress ;  and  in  each  of  these  cases  provision 
was  made  for  the  appointment  of  a  minister,  which,  when  made  in  due  form, 
constitutes,  as  has  been  seen,  according  to  the  rules  of  international  law,  a 
formal  recognition.  In  numerous  other  cases,  the  recognition  was  given  by 
the  Executive  solely  on  his  own  responsibility.  The  question  of  the  power  to 
recognize  has,  however,  been  specifically  discussed  on  various  occasions." 
Dig.,  I,  243-244.  See  documents,  id.,  I,  244-246,  and  in  particular  Mr. 
Seward,  Secy,  of  State,  to  Mr.  DaHon,  American  Minister  at  Paris,  April 
7,  1864,  MS.  Inst.  France,  XVII,  42,  Moore,  Dig.,  I,  246.  C/.,  also,  instruc- 
tions given  by  Mr.  Clayton,  Secy,  of  State,  to  Mr.  Mann,  special  and  confi- 
dential agent  to  Hungary,  June  18,  1849,  Sen.  Ex.  Doc.  43,  31  Cong.,  1  Sess., 
Moore,  Dig.,  I,  218. 

See  C.  A.  Berdahl,  "  The  Power  of  Recognition  ",  Am.  J.,  XIV,  519. 

2  Thus  Mr.  Seward  declared  in  a  communication  to  Mr.  Adams,  American 
Minister  at  London,  May  21,  1861:  "It  is,  of  course,  direct  recognition  to 
pubUsh  an  acknowledgment  of  the  sovereignty  and  independence  of  a  new 
power.  It  is  direct  recognition  to  receive  its  ambassadors,  ministers,  agents, 
or  commissioners,  officially."     Dip.  Cor.  1861,  73,  Moore,  Dig.,  I,  206. 

^  See  statement  in  IMoore,  Dig.,  I,  206. 

64 


ACTS  FALLING  SHORT  OF  RECOGNITION  [§  42 

and  property  are  located,  are  oftentimes  had,  and  that  without 
any  design  to  accord  recognition  of  statehood.^ 

The  United  States  has  frequently  found  it  expedient  to  hold 
unofficial  intercourse  with  communities  engaged  in  revolution 
through  the  medium  of  its  own  agents  sent  thereto,^  and  of  others 
received  therefrom  without  any  intention  of  according  recognition 
through  such  action,  and  without  in  fact  having  done  so.^ 

In  1849,  Mr.  A.  Dudley  Mann  was  sent  to  Europe  as  "special  and 
confidential  agent  of  the  United  States  to  Hungary  ",  under  instruc- 
tions authorizing  him,  according  to  his  discretion  and  prudence,  to 
enter  into  official  diplomatic  relations  with  the  Government  of  Hun- 
gary in  case  it  should  appear  to  him  that  it  was  able  to  maintain 
the  independence  which  it  had  declared.^  This  procedure  is  believed 
to  have  been  unfortunate,  because  there  was  entrusted  to  an  agent 
abroad  the  determination  of  the  question  whether  a  contingency 
had  arisen  which  legally  justified  recognition.  Ultimate  decision 
in  such  a  matter  should,  for  the  sake  of  the  safety  of  the  State 
likely  to  accord  recognition,  be  left  with  the  highest  executive 
authority  thereof  and  so  remain  undelegated  to  any  inferior  officer." 

1  The  fact  that  a  foreign  State  may,  for  the  sake  of  protecting  its  own 
citizens  or  their  property,  by  some  means  enter  into  communication  with  the 
de  facto  government  in  complete  control,  at  least  of  a  certain  portion  of  ter- 
ritory whose  population  is  in  rebellion  against  the  parent  State,  does  not 
necessarily  imply  the  according  of  recognition.  See  Earl  Russell,  to  Mr. 
Adams,  Nov.  26,  1861,  Dip.  Cor.  1862,  8-9,  Moore,  Dig.,  I,  209. 

'  Mr.  Monroe,  Secy,  of  State,  to  Mr.  J.  Poinsett,  agent  to  Buenos  Ayres, 
June  28,  1810,  H.  Rep.  72,  20  Cong.,  2  Sess.,  Moore,  Dig.,  I,  214;  Mr.  Adams, 
Secy,  of  State,  to  Messrs.  Samuel  Smith  and  James  Lloyd,  U.  S.  Senate,  Feb.  24, 
1824,  20  MS.  Dom.  Let.  300,  Moore,  Dig.,  I,  216;  Mr.  Buchanan.  Secy,  of 
State,  to  Gen.  Alvear,  Aug.  14,  1846,  MS.  Notes,  Argentine  Legation,  VI,  19, 
Moore,  Dig.,  I,  217. 

'  Concerning  the  unofficial  reception  by  the  United  States  Government  in 
1900,  of  a  delegation  representing  the  South  African  Republics,  see  documents 
in  Moore,  Dig.,  I,  212-214. 

Compare  attitude  of  Mr.  Seward,  Secy,  of  State,  concerning  unofficial  inter- 
course between  emissaries  of  the  Confederate  States  of  America  and  Great 
Britain  during  the  Civil  War,  and  expressed  in  Moore,  Dig.,  I,  208-210,  citing 
Dip.  Cor.  1861,  72,  87,  88;  id.,  1862,  8-9;  id.,  1865,  III,  378. 

*  "  Mr.  Mann  proceeded  to  Vienna,  but  when  he  arrived  there  the  revolution 
was  practically  ended,  and  he  did  not  visit  Hungary."  Moore,  Dig.,  I,  219, 
citing  Political  Science  Quarterly,  X,  264. 

*  Mr.  Clayton,  Secy,  of  State,  to  Mr.  Mann,  special  and  confidential  agent 
to  Hungary,  June  18,  1849,  Senate  E.x.  Doc.  43,  31  Cong.,  1  Sess.,  Moore, 
Dig.,  I,  218;  protest  of  Chevalier  Hiilsemann,  Austrian  Chargi?  d'Affaires, 
Sept.  30,  1850,  Senate  Ex.  Doc.  9,  31  Cong.,  2  Sess.,  Moore,  Dig.,  I.  221; 
Mr.  Webster,  Secy,  of  State,  to  Chevalier  Hiilsemann,  Dec.  21,  1850,  Senate 
Ex.  Doc.  43,  31  Cong.,  1  Sess.,  Moore,  Dig.,  I.  223.  Cf.  also  President  Taylor, 
special  message,  March  28, 1850,  Senate  Ex.  Doc.  43,  31  Cong.,  1  Sess.,  Moore, 
Dig.,  I,  220.  It  should  be  noted  in  this  connection  that  while  the  instructions 
to  Mr.  Mann  stated  that  under  certain  contingencies  the  President  would 
cheerfully  recommend  to  Congress  the  recognition  of  Hungary,  the  special  and 
confidential  agent  was  empowered  to  commit  acts  which  in  themselves  would 

■    VOL.  1^3  65 


§  43]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

g 

Recognition  of  New  Governments 

§  43.    In  General.  ^^^ 

After  a  State  or  person  of  international  law  has  come  into  being, 
its  duties  to  the  outside  world  are  not  affected  by  reason  of  any 
internal  changes  which  it  may  undergo.  The  transformation 
of  a  monarchy  into  a  republic,  or  the  overthrow  of  the  existing 
government  of  an  opposing  political  party  are  in  one  sense  matters 
of  local  concern.  Said  Mr.  Webster,  Secretary  of  State,  to  Mr. 
Rives,  Minister  to  France,  January  12,  1852 : 

From  President  ^Yashington's  time  down  to  the  present  day 
it  has  been  a  principle,  always  acknowledged  by  the  United 
States,  that  every  nation  possesses  a  right  to  govern  itself  accord- 
ing to  its  owm  will,  to  change  institutions  at  discretion,  and  to 
transact  its  business  through  whatever  agents  it  may  think  proper 
to  employ.  This  cardinal  point  in  our  policy  has  been  strongly 
illustrated  by  recognizing  the  many  forms  of  political  power 
which  have  been  successively  adopted  by  France  in  the  series 
of  revolutions  with  which  that  country  has  been  visited.^ 

On  the  other  hand,  as  any  new  government,  regardless  of  its 
origin  or  kind,  must  in  consequence  of  the  exercise  of  supremacy 
over  the  national  domain,  enter  into  foreign  relations  and  respond 
to  the  international  obligations  of  the  State,  the  outside  world 
is  necessarily  concerned  w4th  respect  to  each  change  which  takes 
place.  Such  concern  becomes  acute  when  the  attempt  to  bring 
about  a  change  is  marked  by  widespread  disorder,  especially  if  the 
contest  for  the  reins  of  government  be  protracted  and  the  issue 
long  unsettled.  Notwithstanding  their  detachment  or  aloofness 
from  the  conflict,  foreign  States  are  obliged  ultimately  to  decide 
what  power  is  to  be  recognized  as  the  de  jure  government  with 
which  formal  and  indefinitely  prolonged  diplomatic  relations  are 
to  be  had.  It  may  be  contended  that  in  theory,  the  question  in- 
volved is  merely  one  of  fact,  and  that  regardless  of  the  method 
by  which  the  party  gaining  supremacy  attained  control,  provided 
it  be  disposed  and  competent  to  respond  to  the  international 
obligations  of  the  State.     Doubtless  in  the  long  run,  outside  States 

have  amounted  to  recognition  in  behalf  of  the  State  of  which  he  was  made  the 
representative. 

1  Senate  Ex.  Doc.  19,  32  Cong.,  1  Sess.,  19,  Moore,  Dig.,  I,  126.  See,  also, 
Mr.  Jefferson,  Secy,  of  State,  to  Mr.  Morris,  American  Minister  at  Paris, 
Nov.  7,  1792,  Jefferson's  Works,  ed.  by  H.  A.  Washington,  III,  488,  489,  Moore, 
Dig.,  I,  120;  Mr.  Buchanan,  Sec3^  of  State,  to  Mr.  Rush,  American  Minister, 
March  31,  1848,  Senate  Ex.  Doc.  53,  30  Cong.,  1  Sess.,  3,  Moore,  Dig.,  I,  124. 

66 


THE  POSITION  OF  THE  UNITED  STATES  [§  44 

are  obliged  to  acknowledge  the  applicability  of  this  principle 
when  a  party  which  by  ruthless  measures  and  in  defiance  of  local 
institutions  or  popular  opposition  firmly  establishes  itself  in 
power  and  thus  appears  to  have  gained  permanent  control.^ 

Enlightened  States  have  perceived  that  any  insurrectionary 
government  notoriously  opposed  to  the  theory  of  popular  sover- 
eignty is  likely  to  be  short-lived,  and,  therefore,  to  inspire  rather 
than  check  local  disorder  which  may  interfere  also  with  the  tran- 
quillity of  foreign  relations.  They  appear  to  be  increasingly  dis- 
posed to  discourage  the  activities  of  arbitrary  and  essentially 
non-popular  aspirants  to  governmental  control,  when  their  methods 
are  heedless  of  the  laws  of  God  or  man.  In  such  case,  the  according 
of  recognition  may  be  fairly  delayed  as  long  as  possible,  and  moral 
support  thus  given  the  opposition.  It  may  be  urged  that  such 
action  constitutes  direct  interference  in  the  domestic  affairs  of  a 
foreign  State,  and  may  be  unjustly  applied  at  the  caprice  of  in- 
terested powers  for  political  ends.  While  the  danger  of  abuse 
of  such  a  power  is  to  be  acknowledged,  it  should  be  observed  that 
there  is  no  legal  duty  imposed  upon  a  State  to  accord  recognition 
to  a  new  government  at  any  particular  time.  The  right  to  with- 
hold it  is  not  wrongful.  The  influence  exerted  upon  the  outcome 
of  a  domestic  conflict  through  the  exercise  of  the  right  to  post- 
pone recognition  of  a  particular  party  until  it  becomes  highly  in- 
expedient longer  to  withhold  it,  does  not  resemble  in  kind  those 
affirmative  acts  of  opposition  which  are  deemed  to  restrain  political 
independence  and  to  constitute  intervention. 

If  in  the  interest  of  the  society  of  nations  the  members  thereof 
should  habitually  manifest  extreme  reluctance  in  recognizing 
as  a  new  government  one  which  acquired  power  in  the  teeth  of 
popular  opposition  and  by  inhuman  methods,  evidence  both  of 
popular  support  and  of  abstinence  from  arbitrary  procedure  would 
be  commonly  if  not  invariably  offered  by  a  party  demanding 
recognition,  as  a  necessary  means  of  preventing  indefinite  delay. 

(2) 
§  44.   The  Position  of  the  United  States. 

Before  the  beginning  of  the  nineteenth  century  Jefferson  de- 
clared it  to  be  in  accord  with  American  principles  "  to  acknowledge 

^  It  may  be  urged  that  any  government  which  thus  estabUshes  itself  enjoys 
in  fact  the  consent  of  the  State  because  the  former  has  possessed  itself  of  power 
to  control  the  latter ;  and  it  may  be  contended  that  by  having  overcome  local 
resistance,  the  will  of  the  sovereign  as  such  is  to  be  regarded  as  lodged  in 
the  government,  regardless  of  the  extent  of  popular  indignation. 

67 


§  44]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

any  government  to  be  rightful  which  is  formed  by  the  will  of  the 
nation,  substantially  declared."  ^ 

He  perceived  both  the  continuity  of  state  life  in  spite  of  gov- 
ernmental changes,  and  also  the  reasonableness  of  entering  into 
formal  relations  with  whatever  party  ultimately  gained  the  as- 
cendancy. It  was  the  fact  of  control  rather  than  any  other  cir- 
cumstance which  appeared  to  be  regarded  by  him  as  the  decisive 
test.  He  expressed  himself  to  the  effect  that  "  the  will  of  the 
nation  "  was  "  the  only  thing  essential  to  be  regarded  ",  whether 
a  "  king,  convention,  assembly,  committee,  president,  or  anything 
else  "  were  chosen  as  the  organ  through  which  intercourse  with 
foreign  nations  was  to  be  had.-  Jefferson  did  not,  however, 
seem  to  be  concerned  with  what  should  be  deemed  to  be  requisite 
proof  of  "  the  will  of  the  nation  "  when  a  monarchy  succeeded  a 
republic. 

During  the  first  half  of  the  nineteenth  century  and  until  the 
Civil  War,  the  theory  of  Jefferson  seems  to  have  been  simply 
applied.  Thus  when  a  monarchical  government  overthrew  a 
republican,  the  result  was  accepted  without  regard  to  the 
domestic  legitimacy  of  the  transaction,  and  recognition  duly  ac- 
corded without  serious  reluctance.^  Irrespective  of  .the  nature 
or  method  of  the  change,  the  United  States  was  not  disposed  to 
concern  itself  with  more  than  the  fact  that  a  particular  party  was 
in  actual  control. "^     Possibly  as  a  consequence  of  the  nature  of  his 

^  See  communication  to  Mr.  Morris,  Nov.  7,  1792,  Jefferson's  Works,  ed. 
by  H.  A.  Washington,  III,  488,  489,  Moore,  Dig.,  I,  120. 

2  Communication  to  Mr.  Morris,  March  12,  1793,  Jefferson's  Works,  ed.  by 
Ford,  VI,  199,  Moore,  Dig.,  I,  120. 

'  Thus  concerning  the  recognition  by  the  United  States  of  the  pretender 
Dom  Miguel  as  King  of  Portugal  in  1829,  Mr.  Van  Buren,  Secy,  of  State, 
declared:  "But,  even  apart  from  the  foregoing  considerations,  the  course 
which  had  ever  before  been  pursued  by  the  United  States  of  always  recognizing 
the  government  existing  de  facto,  and  which  had  but  recently  led  to  the  ac- 
knowledgment of  that  of  Brazil,  left  them  no  choice  in  the  instance  under 
consideration."  Communication  to  Mr.  Brown,  Charge  d'Affaires  to  Brazil, 
Oct.  20,  1830,  MS.  Inst,  to  American  States,  XIV,  101,  Moore,  Dig.,  I,  137. 

*  "  In  its  intercourse  with  foreign  nations  the  Government  of  the  United 
States  has,  from  its  origin,  always  recognized  de  facto  governments.  We 
recognize  the  right  of  all  nations  to  create  and  re-form  their  political  institu- 
tions according  to  their  own  will  and  pleasure.  We  do  not  go  behind  the 
existing  Government  to  involve  ourselves  in  the  question  of  legitimacy.  It  is 
sufficient  for  us  to  know  that  a  government  exists  capable  of  maintaining 
itself;  and  then  its  recognition  on  our  part  inevitably  follows.  This  principle 
of  action,  resulting  from  our  sacred  regard  for  the  independence  of  nations, 
has  occasioned  some  strange  anomalies  in  our  history.  The  Pope,  the  Emperor 
of  Russia,  and  President  Jackson  were  the  only  authorities  on  earth  which 
ever  recognized  Dom  Miguel  as  King  of  Portugal."  Mr.  Buchanan,  Secv. 
of  State,  to  Mr.  Rush,  March  31,  1848,  Senate  Ex.  Doc.  53,  30  Cong.,  1  Sess\, 
3,  Moore,  Dig.,  I,  124. 

See,  also.  President  Pierce,  special  message.  May  15,  1856,  House  Ex.  Doc. 

68 


THE  POSITION  OF  THE  UNITED  STATES  [§  44 

objections  to  the  British  recognition  of  the  Confederate  States  as 
belhgerents  in  1861/  Secretary  Seward,  and  his  successors  for 
some  years  following,  pursued  a  somewhat  different  course.  They 
announced  in  substance  that  a  revolutionary  government  in  a 
republican  State,  and  defiant  of  an  existing  constitution,  and  also 
gaining  control  by  sheer  force  of  arms,  ought  not  to  be  recognized 
by  the  United  States  until  it  was  assured  that  the  change  was 
adopted  by  the  people  rather  than  imposed  upon  them  against 
their  will.^  Thus  the  will  of  the  nation  w^as  deemed  to  be  insepa- 
rable from  or  identical  with  that  of  the  people.  This  idea  found 
expression  in  American  state  papers  for  several  decades,  although 
the  forms  of  utterance  lacked  uniformity.^  In  the  meantime 
American  instructions  gradually  began  to  emphasize  the  signifi- 

103,  34  Cong.,  1  Sess.,  5-6,  Moore,  Dig.,  I,  142;  Mr.  Cass,  Secy,  of  State,  to 
Mr.  McLane,  Minister  to  Mexico,  March  7,  1859,  MS.  Inst.  Mexico,  XVII, 
213,  Moore,  Dig.,  I,  147. 

^  Recognition  of  Belligerency,  infra,  §§  47-48. 

2  Thus  Mr.  Seward  declared  in  an  instruction  to  Mr.  Hovey,  American 
Minister  to  Peru,  March  8,  1868  :  "The  policy  of  the  United  States  is  settled 
upon  the  principle  that  revolutions  in  republican  States  ought  not  to  be  ac- 
cepted until  the  people  have  adopted  them  by  organic  law,  with  the  solemnities 
which  would  seem  sufficient  to  guarantee  their  stability  and  permanency. 
This  is  the  result  of  reflection  upon  national  trials  of  our  own."  Dip.  Cor. 
1866,  II,  630. 

See,  also,  Same  to  Same,  May  7,  1868,  where  it  was  said:  "  What  we  do 
require,  and  all  that  we  do  require,  is  when  a  change  of  administration  has 
been  made,  not  by  peaceful  constitutional  processes,  but  by  force,  that  then 
the  new  administration  shall  be  sanctioned  by  the  formal  acquiescence  and 
acceptance  of  the  people."     Dip.  Cor.  1868,  II,  863. 

Also  Mr.  Seward,  Secy,  of  State,  to  Mr.  Blair,  Dec.  1,  1868,  Dip.  Cor.  1868, 
II,  337,  Moore,  Dig.,  I,  144;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Culver, 
March  9,  1863,  MS.  Inst.  Venezuela,  I,  266,  Moore,  Dig.,  I,  149;  Mr.  Seward, 
Secy,  of  State,  to  Mr.  Hall,  Minister  to  Bolivia,  Sept.  28,  1865,  MS.  Inst. 
Bolivia,  I,  80,  Moore,  Dig.,  I,  154;  Same  to  Same,  April  21,  1866,  Dip.  Cor. 
1866,  II,  330. 

^  See  for  example,  President  Grant,  second  Annual  Message,  Dec.  5,  1870, 
Moore,  Dig.,  I,  127;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Sickles,  Dec.  16,  1870, 
For.  Rel.  1871,  742,  Moore,  Dig.,  I,  133;  Mr.  Evarts,  Secy,  of  State,  to  Mr. 
Baker,  June  14,  1879,  MS.  Inst.  Venezuela,  III,  67,  Moore,  Dig.,  I,  151 ;  Mr. 
Foster,  Secv.  of  State,  to  Mr.  Scruggs,  telegram,  Oct.  12,  1892,  For.  Rel.  1892, 
635,  Moore,  Dig.,  I,  153;  Mr.  F.  W.  Seward,  Acting  Secy,  of  State,  to  Mr. 
Foster,  May  16,  1877,  For.  Rel.  1877,  403,  404,  Moore,  Dig.,  1, 148;  Mr.  Blaine. 
Secy,  of  State,  to  Mr.  Christiancy,  American  Minister  at  Lima,  May  9,  1881, 
For.  Rel.  1881,  909,  Moore,  Dig.,  I,  157;  Mr.  Frelinghuysen,  Secy,  of  State, 
to  Mr.  Phelps,  American  Minister  to  Peru,  July  26,  1883,  For.  Rel.  1883,  709, 
Moore,  Dig.,  I,  157;  President  Arthur,  third  .\nnual  Message,  Dec.  4,  1883, 
For.  Rel.  1883,  vi-vii,  Moore,  Dig.,  I,  158;  Mr.  Bayard,  Secy,  of  State,  to 
Mr.  Buck,  Dec.  16,  1885,  MS.  Inst.  Peru,  XVII,  192,  Moore,  Dig.,  I,  159; 
Mr.  Blaine,  Secy,  of  State,  to  Mr.  Adams,  Nov.  30,  1889,  For.  Rel.  1889,  66, 
Moore,  Dig.,  I,  160;  President  Harrison,  Annual  Message,  Dec.  1,  1890,  For. 
Rel.  1S90,  iv,  Moore,  Dig.,  I,  162;  Mr.  Olney,  Secy,  of  State,  to  Mr.  Tillman, 
Minister  to  Ecuador,  Nov.  6,  1895,  For.  Rel.  1895,  I,  248,  249,  Moore,  Dig.,  I, 
156. 

Compare  Mr.  Hunter,  Acting  Secy,  of  State,  to  Mr.  Baker,  Oct.  3,  1879, 
MS.  Inst.  Venezuela,  III,  79,  Moore,  Dig.,  I,  150,  note. 

69 


§  44]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

cance  of  another  consideration  —  the  ability  of  any  new  govern- 
ment to  respect  the  foreign  obhgations  of  the  State.*  In  1899, 
Secretary  Hay  evinced  a  readiness  to  authorize  the  recognition  of 
a  new  government  merely  when  it  appeared  "  to  be  established 
in  control  of  the  machinery  of  administration  and  in  a  position  to 
fulfill  its  international  obligations."  -  Under  such  circumstances 
recognition  was  speedily  accorded,  and  without  apparent  concern 
as  to  any  other  consideration.^ 

In  more  recent  years,  however,  there  appears  to  have  been  a 
reversion  to  a  position  somewhat  like  that  taken  by  Mr.  Seward 
and  his  immediate  successors.  Without  failing  to  require  assur- 
ance of  the  competency  of  a  new  government  to  perform  inter- 
national obligations,  importance  has  been  attached  to  its  respect 
for  the  constitutional  regime.^ 

At  the  present  time  the  United  States  is  believed  to  be  reluctant 
to  recognize  as  a  de  jure  government  one  which  has  attained  the 
ascendancy  by  force  and  in  defiance  of  a  local  constitution,  in  the 
absence  of  convincing  proof  that  the  change  is  supported  by  popu- 

1  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Baker,  June  14,  1879,  MS.  Inst., 
Venezuela,  III,  67,  Moore,  Dig.,  I,  151. 

2  Communication  to  Lord  Pauncefote,  British  Ambassador  at  Washington, 
Nov.  16,  1899,  For.  Rel.  1899,  344,  Moore,  Dig.,  I,  155;  Mr.  Hay  to  Mr. 
Loomis,  American  Minister  to  Venezuela,  telegram,  Nov.  8,  1899,  For.  Rcl. 
1899,  809,  Moore,  Dig.,  I,  153 ;  Mr.  Adee,  Second  Assist.  Secy,  of  State,  to  Mr. 
Maxwell,  American  Consul-General  at  San  Domingo  City,  Oct.  19,  1899,  169 
MS.  Inst,  to  Consuls,  506,  Moore,  Dig.,  I,  163,  note. 

Declared  Mr.  Hill,  Acting  Secy,  of  State,  in  an  instruction  to  Mr.  Hart, 
American  Minister  at  Bogota,  Sept.  8,  1900  :  "  The  policy  of  the  United  States, 
announced  and  practised  upon  occasion  for  more  than  a  century,  has  been 
and  is  to  refrain  from  acting  upon  conflicting  claims  to  the  de  jure  control  of 
the  executive  power  of  a  foreign  state ;  but  to  base  the  recognition  of  a  foreign 
government  solely  on  its  de  facto  ability  to  hold  the  reins  of  administrative 
power.  When,  by  reason  of  revolution  or  other  internal  change  not  wrought 
by  regular  constitutional  methods,  a  conflict  of  authority  exists  in  another 
country  whereby  the  titular  government  to  which  our  representatives  are 
accredited  is  reduced  from  power  and  authority,  the  rule  of  the  United  States 
is  to  defer  recognition  of  another  executive  in  its  place  until  it  shall  appear 
that  it  is  in  possession  of  the  machinery  of  the  state,  administering  govern- 
ment with  the  assent  of  the  people  thereof  and  without  substantial  resistance 
to  its  authority,  and  that  it  is  in  a  position  to  fulfill  all  the  international  obli- 
gations and  responsibihties  incumbent  upon  a  sovereign  state  under  treaties 
and  international  law."     For.  Rel.  1900,  410,  Moore,  Dig.,  I,  138. 

^  For.  Rel.  1899,  793-812,  concerning  the  revolution  in  Venezuela  in  1899, 
and  the  recognition  of  the  Government  of  Gen.  Ca.stro. 

^  Mr.  Adee,  Acting  Secy,  of  State,  to  the  Provisional  Minister  for  Foreign 
Affairs  of  Honduras,  Aug.  23,  1907,  For.  Rel.  1907,  II,  605;  Mr.  Knox,  Secy. 
of  State,  to  Mr.  Furniss,  American  Minister  to  Haiti,  telegram,  Aug.  18,  1911, 
For.  Rel.  1911,  290;  same,  to  the  American  Minister  to  the  Dominican  Re- 
public, telegram,  Jan.  23,  1912,  For.  Rel.  1912,  341,  in  which  it  was  said  :  "It 
is  the  practice  of  the  Government  of  the  United  States  to  refuse  to  recognize 
any  Government  resulting  from  a  revolution  unless  it  appears  to  represent  the 
will  of  the  people  and  to  be  able  and  willing  to  respond  to  its  international 
obligations." 

70 


THE  POSITION  OF  THE   UNITED  STATES  [§  44 

lar  approval.  Such  was  the  position  taken  by  President  Wilson 
in  withholding  recognition  from  the  government  of  General 
Huerta  in  Mexico  in  1913  and  1914/  and  from  the  Tinoco  govern- 

1  The  withholding  of  recognition  from  the  government  of  General  Huerta 
in  Mexico  deserves  attention.  Francisco  I.  Madero  had  been  elected  to  the 
Presidency  of  Mexico  in  October,  1911,  and  entered  upon  the  duties  of  his 
office  the"  following  month.  For.  Rel.  1911,  519-521.  In  February,  1913, 
he  was  captured  and  his  resignation  secured  through  the  revolt  of  the  army  at 
Mexico  Citv  under  the  leadership  of  Felix  Diaz.  General  Huerta  thereupon 
assumed  the  provisional  presidency.  On  Feb.  22,  1913,  Madero,  while  in  the 
custody  of  the  authorities,  was  killed.  During  the  months  of  March,  April 
and  May,  1913,  the  Huerta  government  was  recognized  by  a  number  of 
European  powers.  In  August,  1913,  having  declined  to  recognize  Huerta, 
President  Wilson  sent  to  Mexico  City  as  his  special  representative,  Mr.  John 
Lind,  formerly  Governor  of  Minnesota.  He  was  instructed  to  endeavor  to 
obtain  a  settlement  of  distressing  conditions  in  Mexico,  and  to  offer  the  good 
offices  of  the  United  States  in  order  to  effect  it.  In  the  judgment  of  President 
Wilson  a  satisfactory  settlement  seemed  to  be  conditioned  on  "(a)  An  im- 
mediate cessation  of  fighting  throughout  Mexico,  a  definite  armistice  solemnly 
entered  into  and  scrupulously  observed ; 

"  (b)  Security  given  for  an  early  and  free  election  in  which  all  will  agree 
to  take  part ; 

"  (c)  The  consent  of  Gen.  Huerta  to  bind  himself  not  to  be  a  candidate  for 
election  as  President  of  the  Republic  at  this  election ;   and 

"  (d)  The  agreement  of  all  parties  to  abide  by  the  results  of  the  election 
and  cooperate  in  the  most  loj^al  way  in  organizing  and  supporting  the  new 
administration." 

The  Lind  mission  proved  abortive,  and  the  terms  proposed  were  formally 
declined  by  Huerta.  On  Aug.  27,  1913,  President  Wilson  brought  the  matter 
to  the  attention  of  Congress,  declaring  that  the  United  States  could  not  be 
the  partisan  of  either  party  to  the  contest  distracting  Mexico,  or  constitute 
itself  the  virtual  umpire.  He  announced  that  "neither  side  to  the  struggle" 
taking  place  in  Mexico  should  receive  any  assistance  from  the  United  States, 
and  simultaneously  prohibited  the  exportation  of  arms  to  any  portion  of  Mexico 
or  to  any  parties  therein.  See  Address  of  the  Pre.sident  to  Congress,  on  Mexican 
Affairs,  Aug.  27,  1913,  Am.  J.,  VH,  Supp.,  279;  Reply  of  Secy,  of  Foreign 
Affairs  of  Mexico  to  proposals  conveyed  through  Mr.  Lind,  Aug.  16,  1913,  id., 
284. 

In  October,  1913,  Huerta,  who  had  announced  a  general  election  to  be  held 
later  during  that  month,  caused  the  arrest  of  numerous  deputies  attending  the 
session  of  the  National  Congress,  dissolved  that  body,  and  assumed  the  role 
of  a  dictator.  See  text  of  Huerta's  decree  of  Oct.  10,  1913,  in  New  York  Sim, 
Oct.  17,  1913.  The  election  was  duly  held,  and  the  results  were  declared  to 
show  that  Huerta  was  the  choice  of  the  electors. 

On  Nov.  7,  1913,  Secretary  Bryan  announced  by  telegram  to  certain  Ameri- 
can diplomatic  officers  the  fact  (for  communication  to  the  governments  to 
which  they  were  accredited)  that  the  President  deemed  it  to  be  "  his  immediate 
duty  to  require  Huerta's  retirement  from  the  Mexican  Government,  and  that 
the  Government  of  the  United  States  must  now  proceed  to  employ  such  means 
as  may  be  necessary  to  secure  this  result."     For.  Rel.  1913,  8.56. 

In  his  Annual  Message  of  Dec.  2,  1913,  President  Wilson  declared  that  there 
could  be  no  certain  prospect  of  peace  in  America  until  Huerta  had  surrendered 
"his  usurped  authority  in  Mexico;  until  it  is  understood  on  all  hands,  indeed, 
that  such  pretended  governments  will  not  be  countenanced  or  dealt  with  by 
the  Government  of  the  United  States."  He  added  that  Mexico  had  no  govern- 
ment, that  the  attempt  to  maintain  one  at  the  City  of  Mexico  had  broken 
down,  and  that  a  mere  military  despotism  had  been  set  up  which  had  hardly 
more  than  the  semblance  of  national  authority.  This,  he  stated,  had  origi- 
nated in  the  usurpation  of  Huerta  who,  he  declared,  had,  after  a  brief  attempt 
to  play  the  part  of  constitutional  President,  "at  last  cast  aside  even  the  pre- 

71 


§  44]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

merit  in  Costa  Rica  in  1917,  and  thereafter.^  Doubtless  American 
recognition  must  be  ultimately  given  where  a  government,  how- 
ever obnoxious  to  the  people  compelled  to  yield  obedience,  main- 
tains itself  indefinitely  and  enforces  locally  complete  submission 

tense  of  legal  right  and  declared  himself  dictator."  It  was  said  that  in  conse- 
quence, there  existed  in  Mexico  a  condition  of  affairs  which  rendered  it  doubt- 
ful whether  even  the  most  elementary  and  fundamental  rights  "either  of  her 
own  people  or  of  the  citizens  of  other  countries  resident  within  her  territory" 
could  long  be  successfully  safeguarded.  He  declared  that  Huerta  had  failed 
in  his  purposes,  that  he  had  forfeited  the  respect  and  moral  support  of  those 
who  were  at  one  time  willing  to  see  him  succeed,  and  that  little  by  little  he  had 
become  completely  isolated.     He  predicted  that  his  collapse  was  not  far  away. 

On  Feb.  3,  1914,  President  Wilson  withdrew  the  embargo  on  the  exporta- 
tion of  arms  and  ammunition  to  Mexico,  thus  technically  placing  the  opposing 
factions  of  Huerta  and  Carranza  upon  an  equality,  although  giving  thereby 
actual  advantage  to  the  latter  by  reason  of  the  superior  opportunities  which  it 
possessed  to  effect  importations.  Later,  however,  the  embargo  was  reestab- 
lished. The  Tampico  flag  incident  in  April,  1914,  and  the  resulting  occupation 
of  Vera  Cruz  by  American  forces  doubtless  served  to  increase  the  reluctance 
of  President  Wilson  to  accord  recognition  to  the  Huerta  government.  Cf. 
Retorsion,  infra,  §  588.  It  should  be  observed,  however,  that  in  consequence 
of  the  mediation  of  Argentina,  Brazil  and  Chile,  negotiations  at  Niagara  Fall.^, 
Ontario,  resulted  in  practical  agreement  between  the  United  States  and  Huertx 
as  to  the  mode  of  reestablishing  constitutional  government  in  Mexico  which 
should  be  recognized  by  the  LTnited  States,  and  should  cause  the  restoration 
of  diplomatic  relations  which  had  been  severed.  Am.  J.,  VIII.  579-585.  The 
unwillingness,  however,  of  General  Carranza  to  participate  in  these  negotia- 
tions served  to  render  them  abortive.  The  constitutionalist  authorities  pre- 
ferred force  to  negotiation  in  their  opposition  to  Huerta.  Following  his 
election  in  July,  19i4,  Huerta  resigned  from  the  presidency  in  the  course  of  a 
few  days,  and  left  the  country.  On  August  15,  the  constitutionalist  army 
entered  Mexico  City,  and  a  few  days  later.  General  Carranza  himself  there 
assumed  the  reins  of  government.  The  following  month  witnessed  the  with- 
drawal of  the  American  troops  from  Vera  Cruz.     Am.  J.,  VIII,  860-864. 

After  July,  1914,  the  revolutionary  party  became  divided  into  factions, 
and  General  Carranza  found  himself  opposed  by  some  of  his  former  lieutenants. 
The  pacification  of  the  country  was  thus  greatly  delayed.  On  June  2,  1915, 
President  Wilson  urged  in  vain  the  leaders  of  the  several  factions  to  act  to- 
gether for  the  "relief  and  redemption  of  their  prostrate  country."  Senate 
Doc.  324,  64  Cong.,  1  Ses?.,  14.  On  Aug.  15,  1915,  Secretary  Lansing,  together 
with  diplomatic  representatives  at  Washington  of  Brazil,  Chile,  Argentina, 
Bolivia,  Uruguay  and  Guatemala,  made  a  vain  appeal  to  the  leaders  of  the 
revolutionary  factions  suggesting  the  convening  of  a  conference  for  the  peace- 
ful settlement  of  their  differences,  and  offering  to  act  as  intermediaries.  Id., 
10  and  15.  Gen.  Carranza  having  gained  control  of  about  75  per  cent  of 
Mexican  territory,  his  government  was  recognized  by  the  LTnited  States  on 
Oct.  19,  1915,  as  the  de  facto  Government  of  Mexico,  in  view  of  assurances 
given  by  it  to  hold  popular  elections  upon  the  restoration  of  domestic  peace, 
and  to  protect  the  lives  and  propertj'  of  foreigners.  This  de  facto  Government 
was  not  a  constitutional  government,  but  rather  one  of  a  military  character 
which  was  expected  by  the  United  States  to  be  within  a  reasonable  time 
"merged  in  or  succeeded  by  a  government  organized  under  the  Constitution 
and  laws  of  Mexico."  See  Mr.  Lansing,  Secy,  of  State,  to  the  President, 
Feb.  12,  1916,  id.,  9-11.  Concerning  the  failure  of  the  Carranza  government 
in  1916  to  pacify  the  country  and  to  overcome  the  operations  of  Villa,  see  Mr. 
Lansing,  June  20,  1916,  to  the  Secy,  of  Foreign  Relations  of  the  de  facto  Mexican 
Government,  Am.  J.,  X,  Supp.,  211. 

'  Dept.  of  State,  mmmunique  for  the  Press,  No.  2,  Aug.  2,  1920,  with  respect 
to  the  refusal  of  the  United  States  to  recognize  the  Tinoco  Government  and  its 
subsequent  downfall. 

72 


THE  POSITION  OF  THE  UNITED  STATES  [§  45 

to  its  will.  The  United  States  now  appears  to  take  the  stand 
that  normally  a  government,  which  by  force  has  won  the  ascend- 
ancy in  opposition  to  the  will  of  the  people  and  with  contempt 
for  rights  created  under  a  local  constitution,  is  internationally  a 
menace  because  its  very  supremacy  sows  seeds  of  discord  bound 
to  ripen  into  a  conflict  which,  however  localized,  may  fairly  be 
deemed  hurtful  to  the  maintenance  of  the  general  peace.  It  is 
doubtless  also  believed  that  a  government  of  such  character  will 
lack  those  moral  qualifications  which  are  found  to  be  essential 
to  enable  the  agencies  of  a  State  to  perform  scrupulously  its  obliga- 
tions to  the  outside  world. 

It  may  be  observed  that  conversely,  the  United  States  appears 
to  be  disposed  to  emphasize  the  popular  approval  of  a  new 
government  as  a  ground  for  action  in  the  according  of 
recognition.^  This  was  true,  with  respect,  for  example,  to  the 
recognition  of  the  Acosta  Government  of  Costa  Rica  in  1920.^ 

§  45.   The  Same. 

In  response  to  an  intimation  that  the  Government  of  Italy  would 
welcome  a  statement  of  the  views  of  that  of  the  United  States 
on  the  situation  presented  by  the  Russian  advance  into  Poland 
in  the  summer  of  1920,  ]\Ir.  Colby,  Secretary'  of  State,  found  occa- 
sion to  make  clear  the  grounds  forbidding  recognition  of  the 
soviet  regime  in  Russia.^  These  were  in  brief,  that  the  existing 
rulers  of  that  country  were  not  in  power  by  the  will  or  consent 
of  any  considerable  portion  of  the  Russian  people,  but  represented 
a  small  minority  thereof,  and  by  means  of  savage  oppression 

^  Mr.  Knox,  Secv.  of  State,  to  Mr.  Furniss,  American  Minister  to  Haiti, 
telegram,  Aug.  18,  1911,  For.  Rel.  1911,  290;  Same  to  Mr.  Lorillard,  America r, 
Charg^  d' Affaires  at  Lisbon,  June  6,  1911,  concerning  the  recognition  of  the 
Republic  of  Portugal,  id.,  690;  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Daw- 
son, Special  Agent  near  the  Provisional  Government  of  Nicaragua,  telegram, 
Oct.  11,  1910,  For.  Rel.  1910,  763 ;  Mr.  Knox,  Secy,  of  State,  to  Mr.  Northcott, 
American  Minister  to  Nicaragua,  Jan.  20,  1911,  concerning  the  previous 
recognition  of  the  Government  of  Gen.  Estrada,  For.  Rel.  1911,  649. 

See,  also,  Mr.  Bryan,  Secy,  of  State,  to  Mr.  Williams,  American  Charg^ 
d'Affaires  at  Peking,  April  6,  1913,  with  respect  to  the  recognition  of  the  Re- 
public of  China.  See  communication  of  President  Wilson  to  the  Provisional 
Government  of  Russia,  Official  Bulletin,  June  9,  1917,  Vol.  I,  No.  26. 

2  Dept.  of  State,  communique  for  the  Press,  Aug.  2,  1920,  No.  2,  announcing 
instructions  given  the  American  representative  at  San  JosC;  Costa  Rica. 

The  United  States  recognized  the  Republican  Government  of  Russia  on 
March  22,  1917,  shortly  after  the  abdication  of  the  Czar  for  himself  and  his 
son.  See  statement  of  Mr.  Francis,  American  Ambassador  to  Russia,  to  the 
Russian  Foreign  Minister,  March  22,  1917,  Naval  War  College,  Int.  Law 
Documents,  1918,  208. 

^  See  communication  to  Baron  Avezzana,  Italian  Ambassador  at  W^ashing- 
ton,  Dept.  of  State,  communique  for  the  Press,  Aug.  10,  1920. 

73 


§  45]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

retained  control.  Secondly,  it  was  pointed  out  that  the  existing 
regime  was  "  based  upon  the  negation  of  every  principle  of  honor 
and  good  faith,  and  every  usage  and  convention  underlying  the 
whole  structure  of  international  law ;  the  negation,  in  short,  of 
every  principle  upon  which  it  is  possible  to  base  harmonious  and 
trustful  relations,  whether  of  nations  or  individuals."  ^  It  was  de- 
clared that  in  the  opinion  of  the  Government,  there  could  not  be 
any  common  ground  upon  which  it  could  stand  with  a  power 
whose  conceptions  of  international  relations  were  so  entirely  alien 
to  its  own,  and  so  utterly  repugnant  to  its  moral  sense ;  and  that 
there  could  be  no  mutual  confidence  or  trust  or  even  respect,  if 
pledges  were  to  be  given  and  agreements  made  with  a  cynical 
repudiation  of  their  obligations  already  in  the  mind  of  one  of  the 
parties.  "  We  cannot  recognize,"  he  said,  "  hold  official  relations 
with,  or  give  friendly  reception  to,  the  agents  of  a  Government 
which  is  determined  and  bound  to  conspire  against  our  institu- 
tions ;  whose  diplomats  will  be  the  agitators  of  dangerous  revolt ; 
whose  spokesmen  say  that  they  sign  agreements  with  no  intention 
of  keeping  them."  ^  Shortly  thereafter  the  French  Government 
announced  hearty  acquiescence  in  the  principles  so  enunciated.^ 

The  importance  of  the  views  announced  by  Secretary  Colby 
is  believed  to  be  due  in  large  degree  to  the  emphasis  laid  upon  the 
impossibility  of  according  recognition  to  a  new  government  essen- 
tially incapable  of  responding  to  the  international  obligations  of 
the  State  which  it  purports  to  represent. 

1  In  this  connection  he  said :  "The  responsible  leaders  of  the  regime  have 
frequently  and  openly  boasted  that  they  are  willing  to  sign  agreements  and 
undertakings  with  foreign  powers,  while  not  having  the  slightest  intention  of 
observing  such  undertakings  or  carrying  out  such  agreements.  This  attitude 
of  disregard  of  obligations  voluntarily  entered  into,  they  base  upon  the  theory 
that  no  compact  or  agreement  made  with  a  non-Bolshevist  government  can 
have  any  moral  force  for  them.  They  have  not  only  avowed  this  as  a  doc- 
trine, but  have  exemplified  it  in  practice.  ... 

"Moreover,  it  is  within  the  knowledge  of  the  Government  of  the  United 
States  that  the  Bolshevist  government  is  itself  subject  to  the  control  of  a 
political  faction,  with  extensive  ramifications  through  the  Third  Internationale, 
and  that  this  body,  which  is  heavily  subsidized  by  the  Bolshevist  government 
from  the  public  revenues  of  Russia,  has  for  its  openly  avowed  aim  the  pro- 
motion of  Bolshevist  revolutions  throughout  the  world.  ... 

"Inevitably,  therefore,  the  diplomatic  service  of  the  Bolshevist  government 
would  become  a  channel  for  intrigues  and  the  propaganda  of  revolt  against 
the  institutions  and  laws  of  the  countries  with  which  it  was  at  peace,  which 
would  be  an  abuse  of  friendship  to  which  enlightened  governments  cannot 
subject  themselves." 

2  For  evidence  in  support  of  these  charges,  see  statement  of  Mr.  Colby, 
Dept.  of  State,  statement  for  the  Press,  No.  4,  Aug.  18,  1920. 

2  See  communication  from  the  French  Embassy,  Aug.  14.  1918,  of  which  an 
English  translation  of  the  French  text  was  given  in  Dept.  of  State,  statement 
for  the  Press,  No.  3,  Aug.  18,  1920,  together  with  statement  of  Secretary  Colby 
concerning  it. 

74 


ACTS  NOT  CONSTITUTING  RECOGNITION  [§  46 


§  46.   Acts  Falling  Short  of  Recognition  of  New  Govern- 
ments. 

Throughout  the  life  of  a  State  there  must  exist,  in  theory,  a 
government  exercising  supremacy  over  its  territory  and  competent 
to  deal  with  foreign  affairs.  In  spite  of  internal  conflicts  for  the 
reins  of  government,  there  must  always  be,  in  legal  contemplation, 
a  de  facto  authority  with  which  foreign  States  may  hold  informal 
intercourse.  The  latter  are  obliged  to  apprise  themselves  as  to 
what  party  or  claimant  is  in  actual  control  of  various  portions 
of  the  national  domain. 

During  the  conflict  such  States  frequently  have  occasion  to 
demand  that  special  protection  be  accorded  the  persons  and  prop- 
erty of  their  respective  nationals.  Thus  the  United  States  rea- 
sonably asserts  the  right  to  call  upon  any  local  authority  assuming 
to  exercise  actual  control  over  a  territorial  area,  to  protect  the 
persons  and  property  of  American  citizens  therein,  and  to  respect 
rights  accorded  them  by  treaty,  and  that  without  prejudice  to  the 
determination  of  the  ultimate  question  concerning  recognition.^ 

After  a  State  has  come  into  being  and  has  been  accorded  recog- 
nition, foreign  powers  which  have  entered  into  diplomatic  relations 
with  it  may  be  said  to  retain  the  right  to  continue  such  inter- 

^  "Pending  such  de  facto  entrance  into  relations,  the  agents  of  the  United 
States  have  the  right  to  demand  of  any  local  authority  assuming  to  exercise 
power  and  control,  protection  of  American  life  and  property  from  injury  or 
damage  and  respect  for  all  American  rights  secured  by  treaty  and  international 
law,  and  their  so  doing  is  to  be  held  an  act  of  necessity,  without  prejudice  to 
the  ulterior  question  of  international  relations  as  between  one  sovereign  gov- 
ernment and  another,  and  equally  without  prejudice  to  our  sovereign  right 
to  exact  reparation  from  the  responsible  perpetrators  of  any  wrong  toward 
this  Government,  its  citizens,  and  their  interests."  Mr.  Hill,  Acting  Secy, 
of  State,  to  Mr.  Hart,  American  Minister  at  Bogota,  Sept.  8,  1900,  For.  Rel. 
1900,  410,  Moore,  Dig.,  I,  138. 

See,  also,  Mr.  Hav,  Secv.  of  State,  to  Mr.  Loomis,  American  Minister  to 
Venezuela,  telegram  Oct.  23,  1899,  For.  Rel.  1899,  802,  Moore,  Dig.,  I.  153; 
Same,  to  Mr.  Bridgman,  Minister  to  Bolivia,  March  14,  1899,  MS.  Inst.  Bolivia, 
II,  113,  Moore,  Dig.,  I,  155,  note;  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Baker, 
Minister  to  Nicaragua,  Aug.  15,  1893,  For.  Rel.  1893,  212,  Moore,  Dig.,  I, 
239 ;  Mr.  Hav,  Secv.  of  State,  to  the  Secy,  of  the  Navv,  Oct.  2,  1899,  240  MS. 
Dom.  Let.  3.53,  Moore,  Dig.,  I,  240;  Mr.  Knox,  Secy,  of  State,  to  the  Nica- 
raguan  Charge  d' Affaires  at  Washingtoti,  Dec.  1,  1909,  For.  Rel.  1909,  455, 
456;  Mr.  Knox,  Secy,  of  State,  to  Mr.  Furniss,  Alinister  to  Haiti,  telegram, 
Aug.  10,  1911,  For.  Rel.  1911,  288;  Mr.  Knox.  Secv.  of  State,  to  Mr.  Wilson, 
Ambassador  to  Mexico,  Feb.  28,  1913,  For.  Rel.  1913,  747. 

The  mes.?age  of  President  Wilson  to  the  people  of  Russia  through  the  Soviet 
Congress,  and  telegraphed  in  March,  1918,  to  the  American  Consul-General 
at  Moscow  for  delivcrv,  did  not  constitute  recognition  of  the  Soviet  Govern- 
ment. Official  Bulletin,  II,  No.  255,  March  12,  1918.  For  the  response  of 
the  Soviet  Congress,  March  14,  1918,  see  Official  Bulletin,  II,  No.  262,  March 
20,  1918. 

75 


§  46]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

course  through  their  existing  agencies  within  its  territory  in  spite 
of  disturbances  therein  incidental  to  a  contest  for  governmental 
control.  The  United  States  has  frequently  availed  itself  of  this 
right  which  it  has  been  able  to  exercise  without  expressly  or  im- 
pliedly recognizing  as  a  government  the  parties  with  which  com- 
munications have  been  held.  What  has  prevented  such  a  conse- 
quence has  been  the  care  taken  to  refrain  from  acts  stamping  com- 
munications with  an  official  character.^  Thus  there  has  been  no 
formal  presentation  of  credentials. 

Conversely,  the  attempt  to  overthrow  a  de  jure  government, 
regardless  of  the  success  of  the  endeavor,  does  not  necessarily 
prevent  the  existing  agencies  of  the  State  established  in  foreign 
countries  from  continuing  to  exercise  their  diplomatic  or  other 
functions.^  The  United  States  generally  takes  the  position  that 
continued  and  even  official  intercourse  through  such  channels 
does  not  imply  recognition  of  the  particular  government  which 

1  "In  the  case  of  new  governments,  however,  a  situation  usually  exists 
which  does  not  arise  in  the  case  of  new  States.  In  the  latter  case  special  agents 
are,  where  there  is  occasion  for  them,  employed,  since  the  dispatch  of  a  minister 
to  a  new  State  is  one  of  the  acts  from  which  its  recognition  is  necessarily 
implied;  but,  in  the  case  of  a  new  government,  the  question  of  recognition 
as  a  rule  practically  concerns  only  the  powers  that  have  already  recognized  the 
State  and  established  regular  diplomatic  relations  with  it.  There  has  thus 
arisen  a  certain  right  of  diplomatic  representation ;  and  the  sending  of  a  new 
minister  or  the  retention  of  an  old  one,  while  it  implies  continued  recognition 
of  the  State,  does  not  constitute  a  recognition  of  the  new  government,  so  long 
as  there  is  no  formal  presentation  of  credentials  and  communications  bear 
only  an  unofficial  character."     J.  B.  Moore,  I,  235. 

See,  also,  Mr.  Seward,  Secy,  of  State,  to  Mr.  Culver,  March  9,  1863,  MS. 
Inst.  Venezuela,  I,  266,  Moore,  Dig.,  I,  235;  Mr.  Gresham,  Secy,  of  State,  to 
Mr.  Baker,  Minister  to  Nicaragua,  Aug.  15,  1893,  For.  Rel.  1893,  212,  Moore, 
Dig.,  I,  239;  Mr.  Hay,  Secy,  of  State,  to  the  Secy,  of  the  Navy,  Oct.  2,  1899, 
240  MS.  Dom.  Let.  353,  Moore,  Dig.,  I,  240. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Loomis,  Minister  to  Venezuela,  Nov.  18, 
1899,  For.  Rel.  1899,  809,  Moore,  Dig.,  I,  236. 

Mr.  Seward,  Secretary  of  State,  was  persistent  in  his  refusal  to  hold  even 
unofficial  intercourse  with  emissaries  of  governments  not  recognized  by  the 
United  States.  See  Mr.  Seward,  Secy,  of  State,  to  Mr.  Partridge,  Minister  to 
Salvador,  Jan.  2,  1864,  MS.  Inst.  American  States,  XVI,  399,  Moore,  Dig., 
I,  237  ;  Same  to  Sa-ne,  No.  34,  Jan.  29,  1864,  MS.  Inst.  American  States,  XVI, 
415,  Moore,  Dig.,  I,  237.  Nevertheless,  Mr.  Seward  permitted  Mr.  Arroyo, 
described  as  "consul,  acting  as  commercial  agent.  New  York",  appointed 
by  the  government  of  Maximilian  in  Mexico,  which  was  not  recognized  by 
the  LTnited  States,  to  attest  invoices  and  manifests  of  vessels  bound  to  Mexican 
ports  from  New  York.  "Such  a  commercial  agent,"  Mr.  Seward  said,  "can 
perform  no  consular  act  relating  to  the  affairs  of  his  countrymen  in  the  United 
States."  Communication  to  Mr.  Romero,  Mexican  Minister,  Aug.  9,  1865, 
Dip.  Cor.,  1865,  III,  486-488,  Moore,  Dig.,  I,  238.  See,  also,  Mr.  Adams, 
Secy,  of  State,  to  the  President,  Jan.  28,  1819,  Am.  St.  Pap.  For.  Rel.  IV,  413. 
Moore,  Dig.,  I,  132. 

The  attitude  of  the  Navy  Department  on  the  question  of  salutes,  pending 
an  insurrection,  is  instructively  set  forth  in  Moore,  Dig.,  I,  240,  note,  with 
respect  to  the  action  of  Commodore  O.  F.  Stanton,  U.  S.  N.,  during  a  revolt 
in  Brazil,  October,  1893. 

76 


IN  GENERAL  [§  47' 

may  utilize  those  agencies  as  its  own.  Obviously  no  new  creden- 
tials emanating  from  an  unrecognized  government  would  be 
received  from  individuals  already  in  the  diplomatic  or  consular 
service  and  who  were  disposed  to  accept  the  authority  of  the 
unrecognized  regime} 


Recognition  of  Belligerency 

(1) 
§  47.    In  General. 

In  case  an  insurrection  has  attained  a  magnitude  such  that 
the  mode  and  extent  of  operations  by  sea  or  land,  and  by  whom- 
soever committed,  are  deemed  sufficiently  to  concern  the  interests 
of  a  foreign  State,  it  may  in  fact  accord  to  the  insurgents  the  rights 
of  belligerents.^  Recognition  of  belligerency  emanates  from  the 
political  department  of  the  State  which  yields  it,^  and  is  commonly 
announced  in  a  formal  proclamation.^ 

By  such  action,  the  foreign  State  undertakes  to  treat  both  par- 
ties to  the  conflict  as  belligerents,  and  also  to  assume  itself  in  re- 
lation to  them  the  position  of  a  neutral  with  the  burdens  and  rights 
incidental  to  such  a  status.^ 

1  A  diplomatic  officer  may  prove  to  be  unwilling  to  exercise  his  functions 
as  such  in  behalf  of  a  new  government  to  whose  methods  and  purposes  he  is 
opposed.  See,  for  example,  documents  in  Moore,  Dig.,  I,  134-135,  concerning 
the  attitude  of  ]Mr.  Barrozo,  Portuguese  Charge  d'Affaires  at  Washington, 
1828,  with  respect  to  the  government  of  Dom  Miguel. 

Upon  the  overthrow  of  the  Pardo  Government  of  Peru  in  July,  1919, 
through  the  occurrence  of  events  which  he  deemed  to  be  a  violation  of  the  con- 
stitution of  that  country.  Dr.  Tudela,  the  Peruvian  Ambassador  at  Washing- 
ton, handed  over  the  archives  of  his  embassy  to  the  First  Secretary  thereof, 
and  duly  advised  the  Department  of  State.  See  Statement  from  Peruvian 
Embassy,  New  York  Times,  July  18,  1919. 

^  Fuller,  C.  J.,  in  the  opinion  of  the  Court  in  the  case  of  The  Three  Friends, 
166  U.  S.  1,  63;  also  Dana's  Wheaton,  Dana's  Note  No.  15,  Moore,  Dig.,  I, 
165 ;   LawTence  B.  Evans,  Cases  on  Int.  Law,  38,  note. 

3  The  courts  regard  themselves  as  bound  by  the  attitude  of  the  political 
department  in  according  recognition.  United  States  v.  Palmer,  3  Wheat. 
610,  643;  The  Divina  Pastora,  4  Wheat.  52,  63;  The  Nueva  Anna,  6  Wheat. 
193. 

■*  Mr.  Blaine,  Secy,  of  State,  to  the  Atty.-Gen.,  March  18,  1889,  172  MS. 
Dom.  Let.  228,  Moore,  Dig.,  I,  201;  Benedict,  J.,  in  The  Conserva,  38  Fed. 
431,  437,  Moore,  Dig.,  I,  201. 

^  "The  act  of  recognition  usually  takes  the  form  of  a  solemn  proclamation 
of  neutrality  which  recites  the  de  facto  condition  of  belligerency  as  its  motive. 
It  announces  a  domestic  law  of  neutrality  in  the  declaring  State.  It  assumes 
the  international  obligations  of  a  neutral  in  the  presence  of  a  public  state  of 
war.  It  warns  all  citizens  and  others  within  the  jurisdiction  of  the  proclaimant 
that  they  violate  those  rigorous  obligations  at  their  own  peril  and  cannot 
expect  to  be  shielded  from  the  consequences.  The  right  of  visit  and  search 
on  the  seas  and  seizure  of  vessels  and  cargoes  and  contraband  of  war  and  good 

77 


§  47]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

Recognition  thus  presupposes  the  existence  of  what  is  equivalent 
to  war  between  the  parties  in  opposition,  and  serves  to  clothe  each 
with  such  rights  with  respect  to  the  outside  State  as  might  be 
fairly  claimed  were  the  conflict  being  waged  between  two  independ- 
ent powers.  These  consequences  are  such  as  to  confer  commonly 
a  distinct  benefit  upon  the  insurgents  obtaining  recognition,  in- 
creasing proportionally  the  burden  of  the  government  opposing 
them.^  For  that  reason  it  is  constantly  maintained  that  a  foreign 
State  is  not  free  thus  to  aid  an  insurgent  cause,  save  under  special 
conditions  which  relieve  the  former  from  a  normal  duty  of  restraint. 
Diplomatic  discussions  have,  however,  revealed  a  divergence  of 
opinion  as  to  what  conditions  so  operate.  American  statesmen 
have  been  reluctant  to  admit  that  such  action  is  legitimate  save 
when  necessity  confronts  the  State  making  the  concession.^  The 
United  States  has  itself  been  cautious  to  avoid  precipitation  in 
according  recognition,^  and  has  withheld  such  a  concession  when- 
ever its  own  domestic  policies  were  deemed  to  oppose  such 
action."* 

It  may  be  doubted  whether  the  precise  conditions  when  recogni- 
tion may  be  justly  accorded  by  a  foreign  State  are  capable  of  nice 
statement.  The  bearing,  however,  of  certain  considerations, 
whether  favorable  or  unfavorable  to  such  action,  ought  not  to  re- 
main obscure. 

prize  under  admiralty  law  must  under  international  law  be  admitted  as  a 
legitimate  consequence  of  a  proclamation  of  belligerency."  President  Mclun- 
ley,  Annual  Message,  Dec.  6,  1897,  For.  Rel.  1897,  XVII. 

1  The  benefit  consists  in  placing  the  insurgents  on  an  equal  footing  as 
belligerents  with  the  parent  State,  and  in  thus  conferring  upon  them  a  status 
of  political  and  moral  value. 

^  "Where  a  parent  government  is  seeking  to  subdue  an  insurrection  by 
municipal  force,  and  the  insurgents  claim  a  political  nationahty  and  belligerent 
rights  which  the  parent  government  does  not  concede,  a  recognition  by  a  foreign 
State  of  full  belligerent  rights,  if  not  justified  by  necessity,  is  a  gratuitous 
demonstration  of  moral  support  to  the  rebellion,  and  of  censure  upon  the 
parent  government."  Dana's  Wheaton,  Dana's  Note  No.  15.  See,  also, 
President  Grant,  special  message,  June  13,  1870,  Moore,  Dig.,  1, 194 ;  President 
Grant,  Annual  Message,  Dec.  7,  1875,  For.  Rel.  1875,  I,  ix,  Moore,  Dig.,  I, 
193. 

3  Mr.  Cass,  Secv.  of  State,  to  Mr.  Osma,  Peruvian  Minister,  Mav  22,  1858, 
Senate  Ex.  Doc.  69,  35  Cong.,  1  Sess.,  17,  Moore,  Dig.,  I,  182;  Mr.  Adams, 
American  Minister  at  London,  to  Lord  Russell,  Sept.  16,  1865,  Dip.  Cor.  1865, 
I,  554,  557,  in  relation  to  the  action  of  the  United  States  with  respect  to  the 
issue  between  Spain  and  its  American  colonies,  Moore,  Dig.,  I,  172;  Mr. 
Gresham,  Secv.  of  State,  to  Mr.  Thompson,  Minister  to  Brazil,  Jan.  11,  1893, 
For.  Rel.  189-3,  99,  Moore,  Dig.,  I.  204. 

*  See,  for  example.  President  Grant,  Annual  Me.ssage,  Dec.  7,  1875,  For. 
Rel.  1875,  X ;  President  Cleveland,  Annual  Message,  Dec.  7,  1896,  For.  Rel. 
1S96,  XXXII ;  President  McKinley,  Annual  Mes.sage,  Dec.  6.  1897,  For.  Rel. 
1897,  XVIII.  The  foregoing  messages,  in  relation  to  the  point  here  considered, 
are  contained  in  Moore,  Dig.,  I,  196-200. 

78 


ATTITUDE  OF  PARENT  STATE  [§  49 

(2) 

§  48.   Where  Parent  State  Has  Recognized  Belligerency. 

When  in  its  work  of  repression  the  parent  State  treats  the  in- 
surrection as  though  it  were  productive  of  a  state  of  war,  as,  for 
example,  by  proclaiming  a  blockade  of  ports  held  by  the  insurgents, 
it  appears  thereby  to  forfeit  the  right  to  claim  that  any  subsequent 
act  of  external  recognition  is  premature  or  inequitable.^  Thus 
Great  Britain  found  a  sufficient  answer  to  the  complaints  of  the 
United  States  concerning  the  Queen's  proclamation  of  May  13, 
1861,  recognizing  the  Confederate  States  as  insurgents,  in  the 
President's  proclamation  of  a  blockade  during  the  previous  month.^ 

(3) 

§  49.   Where  Parent  State   Has  Not  Recognized  Bellig- 
erency. 

Doubtless  the  foreign  State  need  not  show  that  at  the  time  of 
according  recognition  there  was  a  probability  that  eventual  suc- 

'  "  The  parent  State  may  recognize  the  belligerency  of  a  revolting  com- 
munity by  acts  which  imply  the  existence  of  war  or  by  formal  declaration. 
Either  course  may  justify  recognition  bv  foreign  States."  G.  G.  Wilson,  Int. 
Law,  1910,  43. 

-  Lord  Russell,  British  Foreign  Secy.,  to  Mr.  Adams,  American  Minister 
at  London,  May  4,  1865,  Dip.  Cor.  1865,  I,  356 ;  Same  to  Same,  Aug.  30,  1865, 
id.,  536. 

See,  also,  The  Prize  Cases,  2  Black,  635,  666-667,  669-670,  Moore,  Dig.,  I, 
190;   Williams  r.  Bruffy,  96  U.  S.,  176,  189-190,  Moore,  Dig.,  I,  191. 

"It  has  been  held  by  this  court  in  repeated  instances  that,  though  the  late 
war  WIS  not  between  independent  nations,  yet,  as  it  was  between  the  people 
of  different  sections  of  the  country,  and  the  insurgents  were  so  thoroughly 
orgnnized  and  formidable  as  to  necessitate  their  recognition  as  belligerents, 
the  usual  incidents  of  a  war  between  independent  nations  ensued."  United 
States  V.  Pacific  Railroad,  120  U.  S.  227,  233,  Moore,  Dig.,  I,  191. 

"It  is  to  be  observed  that  the  rights  and  obligations  of  a  belligerent  were 
conceded  to  it  [the  Confederacy]  in  its  military  character,  very  soon  after  the 
war  began,  from  motives  of  humanity  and  expediency  by  the  L^nited  States." 
Chief  Justice  Chase,  in  Thorington  v.  Smith,  8  Wall.  10-11,  quoted  bv  Harlan, 
J.,  in  Baldy  v.  Hunter,  171  U.  S.,  388,  393-394;   also  Moore,  Dig.,  1,'  192. 

It  may  be  noted  that  on  May  15,  1809,  Mr.  Fish,  Secy,  of  State,  in  a  com- 
munication to  Mr.  Motley,  .American  Minister  at  London,  declared  that  the 
President  recognized  the  right  of  every  power  when  a  civil  conflict  had  arisen 
within  another  State,  and  had  attained  a  sufficient  complexity,  magnitude  and 
completeness,  to  define  its  own  relations  and  those  of  its  citizens  and  subjects 
towards  the  parties  to  the  conflict,  so  far  as  their  rights  and  interests  were 
necessarily  affected  by  it.  He  added  that  "the  nece.ssity  and  the  propriety 
of  the  original  concession  of  belligerency  by  Great  Britain  at  the  time  it  was 
made  have  been  contested  and  are  not  admitted.  They  certainly  are  ques- 
tionable, but  the  President  regards  that  concession  as  a  part  of  the  case  only 
so  far  as  it  shows  the  beginning  and  the  animus  of  that  cour.se  of  conduct  which 
resulted  so  disastrously  to  the  Ignited  States.  It  is  important  in  that  it  fore- 
shadows subsequent  events."     Moore,  Dig.,  I,  192. 

See,  also,  Case  of  the  United  States,  Part  II,  Geneva  Arbitration,  Papers 

79 


§  49]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

cess  would  attend  the  insurgent  movement.^  It  would  appear, 
however,  reasonable  to  demand  on  principle  that  the  contest 
amount,  at  that  time,  to  what  may  be  fairly  regarded  as  actual 
war,  and  as  such,  something  more  than  "  a  mere  contest  of  physical 
force,  on  however  large  a  scale."  ^     As  has  been  well  said : 

It  must  be  an  armed  struggle,  carried  on  between  two  political 
bodies,  each  of  which  exercises  de  facto  authority  over  persons 
within  a  determinate  territory,  and  commands  an  army  which 
is  prepared  to  observe  the  ordinary  laws  of  war.  It  requires, 
then,  on  the  part  of  the  insurgents  an  organization  purporting 
to  have  the  characteristics  of  a  State,  though  not  yet  recognized 
as  such.  The  armed  insurgents  must  act  under  the  direction 
of  this  organized  civil  authority.  An  organized  army  is  not 
enough.  And  all  this,  of  course,  must  take  place  within  the 
territorial  limits  recognized  by  foreign  States  as  part  of  the 
parent  country.^ 

To  accord  recognition  to  insurgents  who  have  not  achieved  such 
a  degree  of  success,  and  who  are  not  so  organized,  manifests  the 
giving  of  aid  to  a  cause  or  movement  which,  at  the  time,  is  in- 
capable of  assuming  those  responsibilities  of  a  belligerent  which 
such  action  shifts  automatically  from  the  parent  State  to  the 
shoulders  of  its  opponents.^  Under  such  circumstances  that  State 
may  not  unreasonably  complain  that  recognition  is  designed  pri- 
marily to  aid  the  insurrection  rather  than  to  satisfy  the  legitimate 
needs  of  a  foreign  power,  and  so  constitutes  action  resembling 
in  theory  intervention  in  the  domestic  affairs  of  the  complaining 
State. 

It  may  be  doubted  whether  recognition  of  belligerency  can  gen- 
erally be  safeguarded  so  as  not  to  influence  in  some  degree  the  dura- 
tion or  result  of  the  conflict.     It  should  not  be  admitted,  therefore, 

Relating  to  the  Treaty  of  Washington,  I,  19-46.  Cf.  Geo.  Bemis,  Hasty 
Recognition  of  Rebel  Belligerency,  and  Our  Right  to  Complain  of  It,  Boston, 
1865. 

1  Mr.  Forsvth,  Secv.  of  State,  to  Mr.  Gorostiza,  Mexican  Minister,  Sept.  20, 
1836,  Senate  Ex.  Doc.  1,  24  Cong.,  2  Sess.,  81,  Moore,  Dig.,  I,  176.  Compare 
message  of  President  Monroe,  March  8,  1822,  Am.  State  Pap.  For.  Rel.,  IV, 
818,  Moore,  Dig.  I,  174. 

"  Jos.  H.  Beale,  Jr.,  "The  Recognition  of  Cuban  Belligerency,"  Harv.  Law 
Rev.,  IX,  406,  407. 

'  Id.,  407,  where  Walker,  Science  of  Int.  Law,  115,  is  referred  to  as  the  basis 
of  the  first  sentence  quoted. 

*  "We  must  have  some  political  organization  responsible  for  what  takes 
place  in  all  the  territory  of  the  civilized  world.  By  recognizing  the  belliger- 
ency of  insurgents,  we  free  the  parent  country  from  all  responsibility  for  what 
takes  place  within  the  insurgent  lines."  Jos.  H.  Beale,  Jr.,  in  Harv.  Law  Rev., 
IX,  407,  note  3,  citing  Dana's  Wheaton,  Dana's  Note  No.  15. 

80 


RECOGNITION  OF  FACT  OF  INSURGENCY  [§  50 

that  the  absence  of  the  probability  of  exerting  such  an  influence 
is  essential  to  the  propriety  of  such  action. 

According  to  the  trend  of  American  opinion,  the  extent  of  the 
privileges  accorded  the  insurgents  should  be  measured  closely 
by  the  needs  of  the  foreign  State  which  makes  the  concession. 
There  must,  however,  be  encountered  in  each  case  difficulty  in 
ascertaining  and  measuring  the  extent  of  those  needs.  Possibly, 
where  an  insurrection  involves  no  maritime  operations,  there 
may  be  slight  reason  for  the  granting  of  recognition  by  a  for- 
eign State  of  another  continent ;  for  it  becomes  difficult  in 
such  case  to  point  to  any  vital  interest  of  the  latter  which  is  likely 
to  be  adversely  affected  by  restraint  from  such  action. 

It  is  believed,  however,  that  when  an  insurgent  movement  has 
attained  such  a  degree  of  success  and  has  perfected  an  organiza- 
tion such  as  to  justify  the  conclusion  that  a  condition  of  war  in  fact 
exists,  the  parent  State  ceases,  by  reason  of  its  very  inability  to  pre- 
vent the  coming  into  being  of  such  a  state  of  affairs,  to  retain 
any  right  to  influence  or  restrain  the  relationship  which  foreign 
States  thereupon  see  fit  to  establish  with  the  insurgents  as  belliger- 
ents. It  thus  appears  to  be  the  nature  and  extent  of  the  insurrec- 
tionary achievement,  rather  than  any  other  consideration,  which 
offers  in  the  particular  case  the  fairest  test  of  the  propriety  of 
recognition. 

J 

§  50.   Acts  Falling  Short  of  Recognition  of  Belligerency. 
Insurgency. 

In  case  of  an  insurrection,  a  foreign  State  may,  without  recogniz- 
ing the  insurgents  as  belligerents,  formally  acknowledge  that  a 
condition  of  political  revolt  exists,  and  thus  recognize  the  fact  of 
insurgency.^     The  United  States  has  not  infrequently  pursued 

^  "The  distinction  between  recognition  of  belligerency  and  recognition  of  a 
condition  of  political  revolt,  between  recognition  of  the  existence  of  war  in  a 
material  sense  and  of  war  in  a  legal  sense,  is  sharply  illustrated  l)y  the  case 
before  us.  For  here  the  political  department  has  not  recognized  the  existence 
of  a  de  facto  belligerent  power  engaged  in  hostility  with  Spain,  but  has  recog- 
nized the  existence  of  insurrectionary  warfare  prevailing  before,  at  the  time 
and  since  this  forfeiture  is  alleged  to  have  been  incurred."  Chief  Justice 
Fuller,  in  the  opinion  of  the  Court  in  The  Three  Friends,  166  U.  S.  1,  63-64. 

See,  in  this  connection,  George  G.  Wilson,  Insurgency,  Lectures,  Naval 
War  College,  1900;  same  author,  Int.  Law,  1910,  §  18;  same  author,  "In- 
surgency and  International  Maritime  Law",  Am.  J.,  I,  46;  Moore,  Dig.,  I. 
242-243. 

Concerning  the  acts  of  unrecognized  insurgents  in  relation  to  the  establish- 
ment of  blockades,  cf.  Blockade,  Acts  of  Unrecognized  Insurgents,  infra,  §  826. 

Concerning  the  treatment  of  unrecognized  insurgents  as  pirates,  see  Piracy, 
infra,  §  233. 

81 


§  50]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

such  a  course,  thereby  announcing  its  attitude  to  the  courts  and 
obliging  them  to  respect  it.^  The  pronouncements  of  President 
Cleveland  in  1896,  with  respect  to  the  Cuban  insurrection,  are 
illustrative.^ 

Recognition  of  a  condition  of  insurgency  in  a  foreign  country 
is  merely  a  reckoning  with  a  state  of  facts.  It  confers  no  special 
rights  on  the  insurgents ;  it  manifests  no  design  to  aid  them ; 
it  affords  no  ground  of  complaint  to  the  parent  State ;  it  imposes 
on  the  foreign  State  none  of  the  burdens  of  a  neutral.^ 

Such  action  indicates,  however,  that  the  outside  State  is  con- 
scious of  the  existence  of  conditions  sufficing  to  place  it  on  its 
guard  lest  it  fail  to  meet  those  special  requirements  of  international 
law  constraining  a  State  to  endeavor  to  prevent  the  use  of  its 
domain  as  a  base  of  hostile  operations  against  the  government 
of  a  country  with  which  it  is  at  peace.'*  That  task  is  likely  to 
be  burdensome  to  a  State  whose  territory  is  contiguous  or  in  close 
proximity  to  the  domain  of  a  country  in  which  the  insurrection 
occurs.  Nevertheless,  the  bare  recognition  of  insurgency  does 
not  itself  create  the  burden  or  affect  its  weight.^ 

^  "We  are  thus  judicially  informed  of  the  existence  of  an  actual  conflict  of 
arms  in  resistance  of  the  authority  of  a  government  with  which  the  United 
States  are  on  terms  of  peace  and  amity,  although  acknowledgment  of  the  in- 
surgents as  belligerents  by  the  political  department  has  not  taken  place ;  and 
it  cannot  be  doubted  that,  this  being  so,  the  act  in  question  is  applicable." 
The  Three  Friends,  166  U.  S.  1,  65-66. 

^  See,  for  example,  President  Cleveland,  Annual  Message,  Dec.  2,  1895,  For. 
Rel.  1895,  I,  XXXII,  Moore,  Dig.,  I,  198;  President  Cleveland,  Annual 
Message,  Dec.  7,  1896,  For.  Rel.  1896,  XXIX,  Moore,  Dig.,  I,  198;  also 
President  McKinley,  Annual  Message,  Dec.  6,  1897,  For.  Rel.  1897,  XVI, 
Moore,  Dig.,  I,  198.  Also  documents  in  Moore,  Dig.,  I,  193-197,  with  respect 
to  the  attitude  of  the  United  States  during  the  insurrection  in  Cuba,  1868- 
1878. 

President  Taft,  Annual  Message,  Dec.  7,  1911,  with  respect  to  the  existing 
armed  conflict  in  Mexico,  For.  Rel.  1911,  XI-XVI;  Pre.sident  Taft,  Annual 
Message,  Dec.  3,  1912,  For.  Rel.  1912,  XIV;  President  Wilson,  address  to  the 
Congress  concerning  Mexico,  Aug.  27,  1913. 

^  "In  this  connection  I  am  constrained  to  coll  to  your  attention  the  obvious 
fact  that  since  there  is  now  no  recognized  state  of  belligerency  in  Mexico  the 
rules  and  laws  governing  warfare  and  the  conduct  of  neutrnls  are  not  involved." 
Mr.  Wilson,  Acting  Secv.  of  State,  to  the  Mexican  Ambassador  at  Washington, 
March  8,  1912,  For.  Rel.  1912,  740,  741. 

*  See,  for  example,  proclamation  of  President  Van  Buren  Jan.  5,  1838,  with 
respect  to  the  existing  insurrection  in  Canada,  Brit,  and  For.  State  Pap., 
XXXVIII,  1074,  quoted  by  Joseph  H.  Beale,  Jr.,  in  Harv.  Law  Rev.,  IX,  410. 

^  See,  in  this  connection,  joint  resolution  of  the  Congress,  approved  March 
14,  1912,  providing  that  whenever  the  President  should  find  that  in  any  Ameri- 
can country  conditions  of  domestic  violence  existed  which  were  promoted  by 
the  use  of  arms  or  munitions  of  war  procured  from  the  United  States  and 
should  make  proclamation  thereof,  it  should  be  unlawful  to  export,  except 
under  such  limitations  and  exceptions  as  the  President  should  prescribe,  any 
arms  or  munitions  of  war  from  any  place  in  the  United  States  to  such  country 
until  otherwise  ordered  by  the  President  or  by  Congress.     For.  Rel.  1912,  745. 

82 


THE  RIGHT  TO  CONTINUE  EXISTENCE  [§  51 

3 
THE   RIGHT   TO   CONTINUE   EXISTENCE 
§  51.    The  Same. 

The  continuance  of  the  right  of  a  State  to  membership  for  all 
purposes  in  the  family  of  nations  may  be  said  to  depend  in  a  strict 
sense  upon  the  effect  of  its  conduct  upon  the  international  society. 
The  welfare  of  that  society  may  not  require  the  maintenance  of 
a  particular  State ;  its  very  extinction  as  such  may  be  for  the 
general  good.^  When  the  acts  of  a  State  have  caused  the  family 
of  nations,  or  those  members  of  it  which  unite  to  express  the  will 
of  all,  to  reach  such  a  conclusion,  it  forfeits  the  right  to  retain 
its  place  therein  or  to  continue  existence  as  a  full-fledged  member 
thereof.  Various  considerations  may  be  productive  of  this  result. 
These  may  be  commonly  assigned  to  the  failure  of  a  State  either 
through  incompetency  or  political  aggressiveness,  to  respond 
generally  to  its  primary  obligations  to  the  outside  world.  When 
the  injury  to  the  international  society  is  attributable  to  incom- 
petency, the  delinquent  State  is  likely  to  forfeit  its  position  of 
independence  and  find  itself  compelled  to  accept  the  protection  of 
a  stronger  neighbor,  or  to  permit  the  creation  of  one  or  more  new 
States  out  of  portions  of  its  territory  within  which  it  was  incapable 
of  administering  justice.^  Such  are  the  natural  consequences 
of  chronic  delinquency,  and  may  be  expected  to  follow  it  auto- 
matically. 

When  the  political  designs  of  a  State  cause  it  not  only  to  marshal 
its  forces  for  purposes  of  external  aggression,  but  also  to  employ 
them  for  such  an  end  whenever  favorable  opportunity  arises, 
it  proves  itself  to  be  a  menace  to  the  general  peace,  and  so  justifies 
the  united  demand  of  enlightened  countries  that  it  be  shorn  of 
power  and  deprived  of  opportunity  of  abusing  the  customary 
privileges  of  statehoood. 

While  the  conduct  of  a  State  may  be  regarded  as  so  detri- 
mental to  the  welfare  of  the  international  society  that  the  latter 
may  decree  the  extinction  of  it,  a  simpler  procedure  is,  however, 
likely  to  prevail.  In  practice,  a  State  whose  very  life  has  proven 
a  detriment  to  the  common  weal,  either  loses  its  position  of  inde- 
pendence and  is  thus  demoted  in  rank,  or  is  compelled  to  give  up 

^  See,  in  this  connection,  Westlake,  2  ed.,  I,  321-324. 

*  The  incapacity  of  a  State  to  exercise  its  supremacy  over  the  outlying  dis- 
tricts of  its  territor.v,  especially  if  it  is  manifested  in  a  failure  to  administer 
justice,  tends  to  arouse  special  interest  on  the  part  of  outside  States  in  the 
endeavors  of  the  inhabitants  of  such  areas  to  revolt  and  establish  an  inde- 
pendent State  therein. 

83 


§  51]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

the  possession  of  those  things,  moveable  or  immoveable,  which 
are  believed  to  render  it  hostile  to  the  welfare  of  all. 

Normally,  after  a  State  has  come  into  being,  it  is  deemed  to 
enjoy  the  right  to  live  and  develop.^  In  order  to  preserve  its 
existence  it  is  accorded  large  freedom ;  and  to  defend  itself  from 
attack  it  may  even  disregard  the  independence  of  its  adversary. 
The  rights  of  a  State  with  respect  to  the  outside  world  are  not, 
however,  to  be  ordinarily  measured  by  what,  under  extraordinary 
circumstances,  it  may  not  unlawfully  do  in  order  to  prevent  its 
own  destruction.  Because  a  man  may,  in  self-defense,  be  justified 
in  killing  another  individual,  he  is  not  deemed  to  possess  the  right 
of  homicide.  Such  an  act  is  generally  forbidden.  Likewise,  in 
the  society  of  nations,  the  rights  of  the  individual  member  are 
neither  derived  from  nor  manifested  by  conduct  which  is  commonly 
prohibited  and  never  excusable  save  on  grounds  of  self-defense.^ 

The  privileges  and  duties  of  a  State  which  result  from  its  right 
to  live  and  develop  as  a  member  of  the  family  of  nations  may  be 
fairly  observed  in  connection  with  problems  pertaining,  respectively, 
to  political  independence,  property  and  control,  and  matters  of 
jurisdiction. 


RIGHTS  OF  INDEPENDENCE  DURING  EXISTENCE 

a 
§  52.    In  General. 

An  independent  State  as  a  full-fledged  member  of  the  society 
of  nations  has  generally  the  right,  as  Hall  expressed  it : 

to  live  its  life  in  its  own  way,  so  long  as  it  keeps  itself  rigidly 
to  itself,  and  refrains  from  interfering  with  the  equal  right  of 
other  States  to  live  their  life  in  the  manner  which  commends 
itself  to  them,  either  by  its  own  action,  or  by  lending  the  shelter 
of  its  independence  to  persons  organising  armed  attack  upon 
the  political  or  social  order  elsewhere  established.^ 

The  practice  of  States  has  not  thus  far  reflected  a  general  opin- 
ion that  international  necessity  demands  the  further  restriction 

^  "Since  States  exist,  and  are  independent  beings,  possessing  property,  they 
have  the  right  to  do  whatever  is  necessary  for  the  purpose  of  continuing  and 
developing  their  existence,  of  giving  effect  to  and  preserving  their  independ- 
ence, and  of  holding  and  acquiring  property,  subject  to  the  qualification  that 
they  are  bound  correlatively  to  respect  these  rights  in  others."  Hall,  Higgins ' 
7  ed.,  44. 

2  Certain  Non-Political  Acts  of  Self-Defense,  in  General,  infra,  §  65. 

5  Higgins'  7  ed.,  45. 

84 


IN  GENERAL  [§  52 

of  the  individual  State  which  observes  the  conditions  thus  pre- 
scribed. It  must,  however,  be  recognized,  that  the  society  of 
nations  may  at  any  time  conclude  that  acts  which  the  individual 
State  was  previously  deemed  to  possess  the  right  to  commit  with- 
out external  interference,  are  so  injurious  to  the  world  at  large  as 
to  justify  the  imposition  of  fresh  restrictions.^  The  singleness  of 
the  interest  of  all  enlightened  States,  increasing  in  intensity  ac- 
cording to  the  growth  of  international  intercourse  and  the  develop- 
ment of  international  trade,  quickens  the  perception  of  this  fun- 
damental principle,  and  also  tends  to  produce  a  changing  view  of 
what  it  requires.  For  that  reason,  in  the  endeavor  to  enunciate 
sound  applications  of  it,  care  must  be  taken  to  distinguish  be- 
tween forms  of  State  conduct  which,  although  theoretically  ad- 
verse to  the  general  welfare,  are  not  in  practice  regarded  as 
having  attained  international  significance,  from  those  which 
foreign  offices  commonly  treat  as  sufficiently  injurious  to  the 
family  of  nations  to  justify  interference.  The  trend  of  interna- 
tional law  must  not  be  mistaken  for  what  in  the  light  of  practice 
that  law  may  at  any  particular  time  be  fairly  deemed  to  pro- 
scribe. 

The  extent  of  the  freedom  from  external  control  which,  ac- 
cording to  American  opinion,  the  individual  State  is  believed  to 
possess,  will  be  examined  with  reference  to  what  are  commonly 
described  as  domestic  affairs,  as  distinct  from  those  designated 
as  foreign  affairs.  In  the  course  of  such  an  examination  it  needs 
to  be  borne  in  mind  that  the  revolutionary  origin  of  the  United 
States  together  with  the  intolerance  of  external  control  charac- 
teristic of  the  race  to  which  the  people  who  overcame  British 
domination  in  the  eighteenth  century  belonged,  bred  a  devotion 
to  principles  of  independence  which  there  has  happily  been  no  dis- 
position on  the  part  of  the  Republic  to  relinquish.  This  cir- 
cumstance accounts  for  the  caution  with  which  American  opinion 
still  greets  any  proposal  for  the  restriction  by  general  convention 
of  rights  long  acknowledged  to  be  the  usual  and  common  incidents 
of  political  independence.  It  is  only  when  the  sacrifice  de- 
manded in  behalf  of  the  international  society  is  deemed  to 
enhance  the  safety  of  each  member  thereof  by  processes  which, 
having  regard  for  the  requirements  of  justice,  appear  to  be  con- 
ducive to  the  preservation  of  the  general  peace,  that  any  yielding 
on  the  part  of  the  United  States  is  to  be  anticipated. 

^  The  International  Organization  of  States,  supra,  §34. 
85 


§  53]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

b 

In  Domestic  Affairs 

(1) 
§  53.   Form  of  Government. 

A  State  is  acknowledged  to  possess,  as  has  been  observed,  the 
right  to  adopt  whatever  form  of  government  or  constitution  it 
may  see  fit,  and  incidentally  the  right  to  change  either  at  will.^ 
The  exercise  of  freedom  of  choice  does  not  endanger  the  existence 
of  the  State  as  such.  The  international  society  is  not  concerned 
unless  the  form  of  government  adopted  be  of  a  kind  notoriously 
opposed  to  the  existing  order  of  affairs  in  that  society,  and  calcu- 
lated, therefore,  to  render  the  State  impotent  to  perform  its  com- 
mon foreign  obligations  as  a  member  thereof. 

(2) 
§  54.    Legislation. 

A  State  enjoys  the  right  generally  to  enact  such  laws  as  it  may 
see  fit.  The  exercise  of  the  legislative  function  may,  however, 
be  productive  of  the  violation  of  international  obligations  imposed 
either  by  the  law  of  nations  or  by  treaty.  The  circumstance 
that  an  aggrieved  State  may  with  reason  demand  the  repeal  of 
laws  serving  directly  to  cause  the  breach  of  an  international  duty 
merely  indicates  that  there  may  be  an  abuse  of  legislative  power. 
Because  the  legislative  department  of  a  government  may  prove 
to  be  the  particular  means  by  which  a  State  violates  its  duty 
toward  another,  it  is  not  to  be  inferred  that  that  department  is 
subject  to  special  restraint.  The  law  of  nations  is  concerned  with 
the  State  itself  rather  than  with  the  instrumentality  through 
which  it  operates,  and  so  simply  demands  that  no  act  of  the 
former  partake  of  an  internationally  illegal  character.  Thus  it 
always  behooves  the  legislature  as  well  as  the  executive  and  the 
courts  to- take  no  steps  which  expose  the  State  to  the  charge  of 
faithlessness  to  an  international  duty. 

A  State  may  by  various  methods  restrict  its  own  freedom  with 
respect  to  legislation.    Thus  it  may  agree  to  adopt  the  legislation 

^  Mr.  Webster,  Secy,  of  State,  to  Mr.  Rives,  Minister  to  France,  Jan.  12, 
1852,  Senate  Ex.  Doc.  19,  32  Cong.,  1  Sess.,  19,  Moore,  Dig.,  I,  126;  Mr.  Fish, 
Secv.  of  State,  to  Mr.  Bassett,  Minister  to  Haiti,  Feb.  21,  1877,  MS.  Inst. 
Haiti,  II,  91,  Moore,  Dig.,  I,  250;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Buck, 
Minister  to  Peru,  No.  97,  Sept.  23,  1886,  For.  Rel.  1887,  921,  Moore,  Dig.,  I, 
251;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Burton,  Oct.  25,  1862,  MS.  Inst. 
Colombia,  XVI,  47,  Moore,  Dig.,  VI,  20. 

86 


TREATMENT  OF  NATIONALS  [§  55 

of  another  State/  or  to  commit  an  act  requiring  legislation  for 
its  accomplishment.^  In  fact  the  whole  body  of  treaties  to  which 
a  State  is  a  party  marks  the  limits  of  legislative  freedom.  The 
United  States  has  oftentimes  felt  restrictions  so  established,  and 
has  experienced  embarrassment  through  the  tardiness  of  the 
legislatures  of  the  various  States  of  the  Union  to  perceive  the  nature 
or  scope  of  the  restraint  imposed  by  particular  conventions  upon 
every  lawmaking  body  within  the  country.  The  check  similarly 
placed  upon  Congress  has  also  been  acknowledged.  The  limita- 
tion said  to  be  fixed  by  the  Hay-Pauncefote  Treaty  of  November 
18,  1901,  upon  the  right  to  exempt  by  law  vessels  engaged  in  the 
coastwise  trade  of  the  United  States  from  payment  of  tolls 
through  the  Panama  Canal,  is  illustrative.^ 

(3) 

§  55.   Treatment  of  Nationals. 

A  State  enjoys  the  right  normally  to  accord  such  treatment 
as  it  may  see  fit  to  its  own  nationals  within  places  subject  to  its 
control,  such  as  its  own  territory.  The  matter  has  been  commonly 
regarded  as  one  of  an  essentially  internal  character  because  of 
the  unlikelihood  that  even  harsh  measures  locally  applied  would 

1  See,  for  example,  Art.  XXIX  of  Treaty  of  Berlin,  July  13,  1878,  concern- 
ing adoption  bv  Montenegro  of  the  maritime  law  in  force  in  Dalmatia,  Nouv. 
Rec.  Gen.,  2  ser.,  Ill,  449. 

^  See,  for  example,  Art.  VI  of  the  treaty  between  the  United  States  and 
Russia  of  March  30,  1867,  concerning  the  purchase  of  Alaska,  and  contemplat- 
ing the  payment  of  money  to  the  grantor.  Malloy's  Treaties,  II,  1523.  Also 
Art.  VI  of  convention  concluded  by  the  United  States  with  Great  Britain, 
Russia  and  Japan,  for  the  preservation  and  protection  of  fur  seals  frequenting 
the  waters  of  the  North  Pacific  Ocean,  July  7,  1911,  Charles'  Treaties,  60,  62. 

3  The  Panama  Canal  Act  of  Aug.  2-1,  1912,  provided  in  Section  5,  that  "no 
tolls  shall  be  levied  upon  vessels  engaged  in  the  coastwise  trade  of  the  United 
States."  37  Stat.,  Part  I,  560,  562.  President  Wilson  was  of  opinion  that 
this  exemption  was  at  variance  with  the  spirit  of  the  Hay-Pauncefote  Treaty. 
See  address  to  the  Congress,  March  5,  1914.  He,  therefore,  urged  the  repeal 
of  the  exemption.  It  was  repealed  by  an  Act  of  Congress  of  June  15,  1914. 
This  Act  contained  a  proviso  to  the  effect  that  it  should  not  be  construed  as  a 
waiver  or  relinquishment  of  any  right  which  the  United  States  might  have 
under  the  Hay-Pauncefote  Treaty,  or  under  its  treaty  with  Panama,  ratified 
Feb.  26,  1904  (concluded  Nov.  18,  1903),  or  otherwise,  "to  discriminate  in 
favor  of  its  vessels  by  exempting  the  vessels  of  the  United  States  or  its  citizens 
from  the  payment  of  tolls  for  passage  through  said  canal,  or  as  in  any  way 
waiving,  impairing,  or  affecting  any  right  of  the  United  States  under  said 
treaties,  or  otherwise,  with  respect  to  the  sovereignty  over  or  the  ownership, 
control,  and  management  of  said  canal  and  the  regulation  of  the  conditions 
or  charges  of  traffic  through  the  same."     38  Stat.,  Part  I,  385-386. 

See,  also,  correspondence  with  Great  Britain  in  1912  and  1913,  contained 
in  Diplomatic  History  of  the  Panama  Canal,  Senate  Doc.  474,  63  Cong.,  2 
Sess.,  82-102;  speech  of  Hon.  Elihu  Root  in  the  Senate,  Jan.  21,  1913,  on  the 
obligations  of  the  United  States  as  to  Panama  Canal  tolls. 

87 


§  55]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

produce  international  controversy  or  necessarily  unfit  a  State 
to  fulfill  its  obligations  towards  the  outside  world.  A  differ- 
ent practice  would  tend  to  impair  the  actual  value  of  political 
independence  and  also  to  foment  disputes.^  Thus  the  United 
States  would  doubtless  resent  foreign  complaints  respecting 
the  existence  of  conditions  within  its  territory  resulting  in  or 
permitting  the  frequent  lynching  of  American  citizens  of  the 
African  race,  or  relating  to  the  political  status  of  American 
Indians. 

The  treatment  by  a  State  of  its  own  nationals  according  to 
methods  which,  by  the  standards  prevailing  in  enlightened  coun- 
tries, appear  to  be  cruel  or  otherwise  at  variance  with  the  dictates 
of  humanity,  always  shocks  the  sensibilities  of  foreign  States 
which  not  infrequently  utter  expressions  of  regret  or  indignation. 
Even  in  such  cases,  however,  it  has  been  perceived  in  the  United 
States  and  elsewhere  that  the  matter  is  primarily  not  one  for  dip- 
lomatic protest.  For  that  reason,  foreign  efforts  to  dissuade  a 
State  from  pursuing  a  ruthless  policy  deemed  to  be  subversive 
of  the  requirements  of  justice  have  oftentimes  been  confined  to 
appeals  of  an  intercessory  character,  and  have  not  taken  the  form 
of  legal  demands  expressive  of  any  right  of  interposition.^ 

If,  however,  the  acts  complained  of  directly  involve  or  affect 
the  special  or  well  defined  interests  of  outside  States,  there  may 
exist  the  basis  of  a  right  to  interfere.  The  United  States  appears 
on  occasions  to  have  acted  on  this  principle.  Thus  Secretaries 
Blaine,  Gresham  and  Hay  declared  that  rigorous  measures  adopted 
against  the  Hebrew  nationals  of  Russia  and  Roumania,  and  which 
forced  a  numerous  class  of  destitute  persons  to  emigrate  to  the 

^  Declared  President  Buchanan,  Jan.  4,  18.59,  with  reference  to  the  case  of 
Edgar  Mortara :  "I  have  long  been  convinced  that  it  is  neither  the  right  nor 
the  duty  of  this  government  to  exercise  a  moral  censorship  over  the  conduct 
of  other  independent  governments  and  to  rebuke  them  for  acts  wliich  we  may 
deem  arbitrary  and  unjust  towards  their  own  citizens  or  subjects.  Such  a 
practice  would  tend  to  embroil  us  with  all  nations.  We  ourselves  would  not 
permit  any  foreign  power  thus  to  interfere  with  our  domestic  concerns  and 
enter  protests  against  the  legislation  or  the  action  of  our  government  towards 
our  own  citizens.  If  such  an  attempt  were  made  we  should  prompth'  advise 
such  a  government  in  return  to  confine  themselves  to  their  ovm  affairs  and  not 
intermeddle  with  our  concerns."  Communication  to  Mr.  Hart,  49  MS.  Dom. 
Let.  474,  Moore,  Dig.,  VI,  350. 

See,  also,  Mr.  Fish,  Secv.  of  State,  to  Mr.  Brown,  Minister  to  Turkev, 
No.  24,  Dec.  5,  1871,  For.  Rel.  1872,  669,  Moore,  Dig.,  VI.  334,  335 ;  Mr.  Cass, 
Secy,  of  State,  to  Mr.  Hart,  Dec.  8,  1858,  49  MS.  Dom.  Let.  415,  Moore,  Dig., 
VI,  348,  note. 

^  See,  for  example,  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Hoffman, 
American  Charge  d'Affaires  at  St.  Petersburg,  >s^o.  123,  April  15,  1882,  House 
Ex.  Doc.  470,  51  Cong.,  1  Sess.,  65,  Moore,  Dig.,  VI,  353. 

88 


TREATMENT  OF  NATIONALS  [§  55 

United  States,  directly  and  injuriously  affected  the  interests  of 
the  latter,  to  a  degree  which  justified  its  protest.^ 

Again,  the  United  States  has  been  disposed  to  contend  that 
in  certain  countries  not  accepted  as  full-fledged  members  of  the 
family  of  nations,  where  American  missionary  enterprises  were 
permitted  to  operate,  native  nationals  associated  therewith  by 
religious  profession  or  otherwise  should  not  be  subjected  to  moles- 
tation or  persecution.^ 

It  should  be  observed  that  circumstances  may  at  any  time  create 
a  general  international  interest  in  the  treatment  accorded  certain 
classes  or  groups  of  the  nationals  of  a  State.  Such  an  interest 
was  reflected  in  the  Covenant  of  the  League  of  Nations 
which  declares  that  the  members  thereof  "  undertake  to  secure 
just  treatment  of  the  native  inhabitants  of  territories  under  their 
control."  ^  It  was  also  manifested  in  the  treaty  between  the 
Allied  and  Associated  Powers,  on  the  one  hand,  and  Poland,  on 
the  other,  concluded  June  28,  1919,  and  in  which  it  was  agreed 
that  certain  stipulations  affecting  Polish  nationals  belonging  to 
racial,  religious  or  linguistic  minorities,  constituted  obligations 
of  international  concern,  and  should  be  placed  under  the  guarantee 
of  the  League  of  Nations.^ 

The  German  Treaty  of  Versailles  of  June  28,  1919,  announced 

^  Thus  Secretary  Hay  declared  :  "The  right  of  remonstrance  against  the 
acts  of  the  Roumanian  government  is  clearly  established  in  favor  of  this  gov- 
ernment. Whether  consciously  and  of  purpose  or  not,  these  helpless  people, 
burdened  and  spurned  by  their  native  land,  are  forced  by  the  sovereign  power 
of  Roumania  upon  the  charity  of  the  United  States.  This  government  cannot 
be  tacit  party  to  such  an  international  wrong.  It  is  constrained  to  protest 
against  the  treatment  to  which  the  Jews  of  Roumania  are  subjected,  not  alone 
because  it  has  unimpeachable  ground  to  remonstrate  against  the  resultant 
injury  to  itself,  but  in  the  name  of  humanity."  Communication  to  Mr. 
Wilson,  American  Minister  to  Roumania,  July  17,  1902,  For.  Rel.  1902.  910, 
Moore,  Dig.,  VI.  364. 

See,  also,  Mr.  Blaine,  Secv.  of  State,  to  Mr.  Smith,  Minister  to  Russia,  No.  78, 
Feb.  18,  1891,  For.  Rel.  1891,  737,  Moore,  Dig.,  VJ,  354;  Mr.  Gre-sham,  Secy, 
of  State,  to  Mr.  Webb,  Charge  d'Affaires,  at  St.  Petersburg,  No.  119, 
Aug.  28,  1893,  For.  Rel.  1894,  535,  Moore,  Dig.,  VI,  356,  note;  President 
Harrison,  Annual  INIessage,  Dec.  9,  1891,  For.  Rel.  1891,  xii,  Moore, 
Dig.,  VI,  358;  Mr.  Hay,  Secy,  of  State,  to  American  diplomatic  representa- 
tives at  London,  Paris,  Berlin,  St.  Petersburg,  Vienna,  Rome  and  Constanti- 
nople, Aug.  11,  1902,  For.  Rel.  1902,  42,  Moore,  Dig.,  VI,  365. 

^  According  to  Art.  XIV  of  the  treaty  between  the  United  States  and  China, 
of  Oct.  8,  1903  :  "Any  person,  whether  citizen  of  the  United  States  or  Chinese 
convert,  who,  according  to  these  tenets,  peaceably  teaches  and  practices  the 
principles  of  Christianity  shall  in  no  case  be  interfered  with  or  molested  there- 
for. No  restrictions  shall  be  placed  on  Chinese  joining  Christian  churches." 
Malloy's  Treaties,  I,  268. 

See,  also,  ^r.  Hav,  Secv.  of  State,  to  Mr.  Conger,  American  INIinister  to 
China,  telegram  Oct.30,  1900,  For.  Rel.  1901,  Appendix,  Affairs  in  China,  346. 

3  Art.  XXIII. 

*  Art.  XII.     See,  also.  Conditional  Recognition,  supra,  §  38. 

89 


§  55]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

that  the  failure  of  any  State  to  adopt  humane  conditions  of  labor 
was  an  obstacle  in  the  way  of  other  States  which  desired  to  im- 
prove conditions  within  their  own  territories,  and,  by  implication, 
a  token  of  disregard  of  that  social  justice  on  which  the  main- 
tenance of  universal  peace  was  acknowledged  to  depend.^  That 
treaty  established,  accordingly,  a  permanent  organization  in 
cooperation  with  the  League  of  Nations,  with  the  design  of 
securing  and  maintaining  fair  and  humane  conditions  of  labor  for 
men,  women  and  children  within  each  State,  and  necessarily  for 
the  benefits  of  nationals  and  aliens  alike.^  There  was  thus  re- 
vealed a  fresh  endeavor  to  check  through  an  international  agency 
the  power  of  the  individual  State,  within  certain  bounds,  to  deal 
harshly  with  its  own  nationals  inhabiting  its  own  domain.^ 


Foreign  Affairs 

(1) 
§  56.   In  treneral. 

An  independent  State  doubtless  still  enjoys  the  right  to  deter- 
mine, as  Hall  has  expressed  it,  "  what  kind  and  amount  of  inter- 
course it  will  maintain  with  other  countries,  so  long  as  it  respects 
its  social  duties,  and  by  what  conditions  such  intercourse  shall  be 
governed."  ■*  It  should  be  observed,  however,  that  these  social 
duties  are  closely  entwined  with  legal  duties.  The  latter  embrace 
the  obligation  to  maintain  diplomatic  intercourse  with  foreign 
States  generally.^     The  practice  of  so  doing  is  universal.     This 

^  Part  XIII,  and  particularly  the  preamble  thereof ;  also  Art.  XXIII  of  the 
Covenant  of  the  League  of  Nations. 

^  To  that  end  the  organization  actine  through  a  general  conference,  and 
with  the  aid  of  an  International  Labor  Office,  is  to  propose  recommendations 
for  national  legislation,  or  the  drafts  of  international  conventions  for  ratifica- 
tion. Elaborate  provisions  designed  to  render  efifective  the  observance  of 
conventions  which  shall  have  been  accepted  are  al-o  incorporated  in  the  treaty. 

3  A  reason  for  urging  a  State  to  refrain  from  inhumane  treatment  of  its  own 
nationals  is  to  be  found  in  the  circumstance  that  when  charged  with  the  denial 
of  justice  to  resident  aliens,  the  territorial  sovereign  may  endeavor  to  rely  in 
defense  on  the  fact  (if  it  be  one)  that  such  individuals  were  accorded  treatment 
no  more  severe  than  that  applied  to  nationals,  and  were  not,  in  its  iudgment, 
so  dealt  with  as  to  justifv  interposition  in  their  behalf.  See,  in  this  connection, 
Duties  of  Jurisdiction,  infra,  §  266-267. 

^Higgins'  7  ed.,  49. 

^  Thus  in  1852  the  United  States  believed  that  it  had  the  right  to  insist 
that  Japan  enter  into  such  treaty  relations  "  as  would  protect  travellers  and 
sailors  from  the  United  States  visiting  or  cast  ashore  on  that  island  from 
spoliation  or  maltreatment,  and  also  to  procure  entrance  of  L'nited  States 
vessels  into  Japanese  ports."  Moore,  Dig.,  V,  740,  citing  Mr.  Conrad,  Assist. 
Secy,  of  State.,  to  Mr.  Kennedy,  Nov.  5,  1852,  MS.  Notes,  Special  Missions, 

90 


THE   CONCLUSION  OF  SPECIAL  RELATIONSHIPS     [§  57 

fact,  together  with  the  circumstance  that  the  isolation  of  a  State 
would  be  wholly  incompatible  with  its  health  and  growth,  serve 
to  obscure  the  obligatory  aspect  of  its  conduct.  Thus  what  takes 
place  is  more  frequently  described  as  indicative  of  a  right  of  lega- 
tion than  as  the  performance  of  a  duty  towards  the  outside  world  ; 
for  the  maintenance  of  diplomatic  intercourse  is  looked  upon  as  a 
privilege  rather  than  a  burden.^ 

While  a  particular  State  may  sever  diplomatic  relations  with 
another,  such  conduct  always  betokens  the  existence  of  an  inter- 
national controversy,  and  marks  an  essentially  abnormal  situa- 
tion between  the  powers  at  variance. 

The  right  of  a  State  not  only  to  hold  official  intercourse  with 
the  outside  world,  but  also  to  retain  its  own  independence  while 
so  doing,  must  be  acknowledged.  In  theory.  States  which  are 
not  in  a  condition  of  dependence  deal  with  each  other  as  equals. 
Their  freedom  of  action  is  not,  therefore,  hampered  by  lack  of 
extensive  territorial  possessions  or  of  vast  military  power.  More- 
over, in  all  of  the  technical  methods  of  negotiation,  each  State 
enjoys  widest  latitude,  and  on  the  same  basis  as  every  other. 

(2) 
§  57.   The  Conclusion  of  Special  Relationships. 

A  State  enjoys  the  right  to  enter  into  special  relationships 
with  foreign  powers,  and  that  by  appropriate  means.  Those 
actually  employed  are  formal  agreements  which  oftentimes  take 
the  form  of  treaties.  Such  compacts  merely  register  tlie  endeavor 
of  the  parties  thereto  to  establish  definite  relationships  between 
them.  Thus  the  act  of  contracting  is  simply  the  method  by  which 
a  State  exercises  the  broader  right  attributable  to  its  political  in- 
dependence. From  recourse  to  that  method  —  that  is,  from  the 
concluding  of  agreements  —  no  independent  State  finds  itself 
debarred.^ 

Treaties  or  other  agreements  may,  however,  be  declaratory 
of  special  relationships  deemed  offensive  to  the  welfare  of  the 
international  society,  and  even  forbidden  by  it.     If,  in  such  case, 

III,  1.  See,  also,  attitude  of  Mr.  Cushing,  Minister  Plenipotentiary  and 
Commissioner,  to  the  Chinese  authorities  in  1844,  asserting  the  right  of  lega- 
tion in  China.  Moore,  Dig.,  V,  417,  419;  also  report  on  Expulsion  by  M. 
Rolin-Jacquemyns,  to  the  Institute  of  International  Law,  1888,  Annuaire, 
X,  229,  231-232. 

1  Oppenheim,  2  ed.,  I,  360-362. 

^  "The  full  power  to  enter  into  treaties  is  an  attribute  of  every  such  [sov- 
ereign] State,  as  likewise  a  limitation  on  its  exercise  is  a  first  mark  of  de- 
pendence."    CrandaU,  Treaties,  Their  Making  and  Enforcement,  2  ed.,  §  2. 

91 


§  57]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

the  compacts  are  to  be  regarded  as  void,  it  signifies  that  no  in- 
strumentahty  of  a  contractual  nature  may  be  lawfully  utilized 
to  establish  a  relationship  which  the  law  of  nations  definitely  de- 
nounces. It  is  the  illegality  of  the  end  rather  than  of  the  means 
which  is  of  international  significance.  Inasmuch,  however,  as 
the  essence  of  the  relationship  is  a  contractual  undertaking 
binding  the  parties  to  do  or  not  to  do  certain  acts,  it  is  a  reason- 
able and  not  unscientific  conclusion  which  imputes  to  the  law  of 
nations  the  imposition  of  restraints  upon  the  exercise  of  the  con- 
tracting power  of  the  individual  State. 

The  international  society  has  been  slow  to  evince  sufficient 
interest  in  the  special  relationships  between  friendly  States  to 
establish  rules  declaratory  of  the  principle  involved.  Thus,  inde- 
pendent States  have  been  acknowledged  to  possess  the  right  to 
enter  into  political  relationships  such  as  alliances,  binding  the 
parties  to  assist  each  other  in  the  event  of  war,  as  well  as  commer- 
cial and  economic  unions  of  great  variety.  In  view  of  current 
practices,  it  was  not  contrary  to  international  law  for  the  United 
States  to  enter  into  an  alliance  with  France  in  1778,^  or  in  later 
years  to  join  with  Great  Britain  in  a  project  to  neutralize  a  pro- 
jected interoceanic  canal,^  or  to  assume  the  burdens  of  a  protector 
over  Cuba,^  or  to  become  the  guarantor  of  the  independence  of 
Panama.^ 

It  must  be  obvious,  however,  that  special  relationships  and 
undertakings  incidental  to  them  are  essentially  hostile  to  the  gen- 
eral interest  of  the  family  of  nations,  when  they  serve  to  commit 
the  contracting  States  to  unite  in  the  invasion  of  the  territory  of 
a  third  State  guilty  of  no  WTong,  or  otherwise  to  interfere  with 
its  political  independence.  Any  relationship  designed  to  cause 
injury  to  an  unoffending  State  must  be  regarded  as  a  menace  to 
the  general  peace,  and,  therefore,  one  which  the  society  of  nations 
may  fairly  denounce  as  internationally  illegal. 

It  may  here  be  observed  that  the  Covenant  of  the  League  con- 
tains the  declaration  that  it  shall  not  be  deemed  to  afi"ect  the  valid- 
ity of  international  engagements  such  as  treaties  of  arbitration, 
or  regional  understandings  like  the  jNIonroe  Doctrine  for  securing 
the  maintenance  of  peace.^ 

1  Mallov's  Treaties,  I,  449. 

■  Clayton-Bulwer  Treaty,  of  April  19,  1S50,  Mallov's  Treaties,  I,  659. 
3  Art.  Ill  of  treaty  with  Cuba  of  May  22,  1903,  Mallov's  Treaties,  I,  364. 
^  Art.  I  of  treaty  with  Panama,  Nov.  18,  1903,  Mallov's  Treaties.  II,  1,349. 
*  Art.  XXI.     Concerning:  the  Monroe  Doctrine,  see  infra,  §  97.     The  Mon- 
roe Doctrine  is  not  a  regional  understanding. 

The  United  States  has  entered  into  regional  understandings  on  more  than 

92 


THE  CONCLUSION  OF  SPECIAL  RELATIONSHIPS     [§  57 

While  as  yet  there  is  apparent  no  general  solicitude  on  the  part 
of  enlightened  States  with  respect  to  the  establishment  of  special 
relationships  not  regarded  as  conducive  to  war,  the  international 
interest  may  in  fact  broaden,  and  gradually  tend  to  check  the  free- 
dom of  action  of  individual  States  in  uniting  for  essentially  eco- 
nomic or  commercial  purposes,  especially  if  the  end  contemplated 

one  occasion  with  respect  to  the  preservation  of  the  territorial  integrity  of 
China  and  the  so-called  "open-door  pohcy"  in  relation  to  that  country.  Thus 
Mr.  Hay,  Secretary  of  State,  in  1899  and  1900,  was  successful  in  concluding 
arrangements  with  Great  Britain,  France,  Germany,  Russia,  Italy  and  Japan, 
by  which  those  powers  agreed  to  recognize  the  open-door  policA'  with  respect 
to  foreign  trade  in  Chinese  territory  over  which  the.y  had  claimed  spheres  of 
influence  or  the  rights  of  lessees.  For.  Rel.  1899,  128-141,  Moore,  Dig.,  V, 
534-.546.  These  agreements  also  purported  to  recognize  the  sovereign  rights 
of  China  in  the  territorv  concerned.  See  in  this  connection  memorandum  of 
Mr.  Hay,  Secretary  of  State,  Feb.  1,  1902,  For.  Rel.  1902,  275,  926,  Moore, 
Dig.,  V,  546.  By  an  exchange  of  notes  Nov.  30,  1908,  between  Mr.  Root, 
Secretary  of  State,  and  Baron  Takahira,  Japanese  Ambassador  at  Washing- 
ton, it  was  agreed  in  behalf  of  the  United  States  and  Japan,  (1)  to  be  the  wish 
of  the  two  governments  to  encourage  the  free  and  peaceful  development  of 
their  commerce  on  the  Pacific  Ocean ;  (2)  that  the  policy  of  both  governments, 
uninfluenced  by  any  aggressive  tendencies,  was  directed  to  the  maintenance 
of  the  existing  status  quo  in  the  region  mentioned,  and  to  the  defense  of  the 
principle  of  equal  opportunity  for  commerce  and  industry  in  China;  (3)  to 
respect  reciprocally  the  territorial  possessions  belonging  to  each  other  in  that 
region;  (4)  to  preserve  the  common  interest  of  all  powers  in  China  by  sup- 
porting by  all  pacific  means  at  their  disposal  "the  independence  and  integrity 
of  China  and  the  principle  of  equal  opportunity  for  commerce  and  industry 
of  all  nations  in  that  Empire ; "  and  (5)  in  the  event  of  an  occurrence  threaten- 
ing the  status  quo  as  'thus  described,  or  the  principle  of  equal  opportunity 
as  so  defined,  to  communicate  with  each  other  in  order  to  arrive  at  an  under- 
standing as  to  what  measures  it  might  be  considered  useful  to  take.  See 
Malloy's  Treaties,  I,  1045-1047.  By  an  exchange  of  notes  Nov.  2,  1917,  be- 
tween Mr.  Lansing,  Secretary  of  State,  and  Viscoimt  Ishii,  Japanese  Ambassa- 
dor on  Special  Mission,  it  was  declared  that  the  governments  of  the  United 
States  and  Japan  recognized  that  "territorial  propinquity  creates  special  re- 
lations between  countries,"  and  that  consequently  the  United  States  recog- 
nized that  Japan  had  special  interests  in  China,  particularly  in  the  part  to 
which  her  possessions  were  contiguous.  It  was  announced  that  the  territorial 
sovereignty  of  China  remained,  nevertheless,  unimpaired,  and  it  was  denied 
that  the  governments  of  the  contracting  parties  had  any  purpose  to  infringe 
in  any  way  the  independence  or  territorial  integrity  of  that  country.  It  was 
further  declared  that  those  governments  would  always  adhere  to  the  principle 
of  the  open-door  or  equal  opportunity  for  commerce  and  industry  in  China, 
and  it  was  announced  also  that  they  were  opposed  to  the  acquisition  by  any 
government  of  any  special  rights  or  privileges  which  would  affect  the  inde- 
pendence or  integrity  of  China,  or  which  would  deny  to  the  nationals  of  any 
country  full  enjoyment  of  equal  opportunity  in  commerce  and  industry  in 
China.  Official  Bulletin,  No.  152,  Nov.  6,  1917;  also  explanatory  statement 
of  Secretary  Lansing,  id.,  Treaty  Series  No.  630.  See,  also,  in  this  connection, 
Shutaro  Tomimas,  The  Open-Door  Policv  and  The  Territorial  Integrity  of 
China,  New  York,  1919,  133-145. 

The  United  States  has  on  occasion  entered  into  regional  understandings 
of  a  non-political  character,  such  as,  for  example,  the  treaty  with  Great  Britain 
for  the  suppression  of  the  African  slave  trade,  within  two  hundred  miles  of 
the  African  coast,  concluded  April  7,  1862,  Malloy's  Treaties,  I,  674,  and  the 
convention  for  the  preservation  and  protection  of  fur  seals  frequenting  the 
waters  of  the  North  Pacific  Ocean,  concluded  with  Great  Britain,  Russia  and 
Japan,  July  7,  1911,  Charles'  Treaties,  60. 

93 


§  57]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

is  deemed  to  be  sufficiently  detrimental  to  the  welfare  of  other 
States.^ 

(3) 

§  58.   The  Right  to  Acquire  Territory.    ' 

An  independent  State  is  deemed  to  possess  the  right  to  acquire 
territory,  and  thus  by  normal  processes  to  increase  the  area  of 
its  national  domain.^  At  the  present  time,  these  commonly  in- 
volve a  transaction  between  States  or  countries  deemed  to  be 
capable  of  exercising  rights  of  property  and  control.  Therefore, 
the  acquisition  of  territory  is  a  form  of  conduct  intimately  con- 
nected with  the  foreign  relations  of  the  power  which  adds  to  its 
territorial  possessions. 

A  neutralized  State,  by  reason  of  the  nature  of  its  status,  may 
encounter  difficulty  in  lawfully  acquiring  territory  the  control 
of  which  requires  the  sovereign  to  commit  acts  which  are  incon- 
sistent with  the  character  of  such  a  State. 

(4) 
The  Admission  and  Expulsion  of  Aliens 

(a) 
§  59.   Admission. 

A  State  is  acknowledged  to  enjoy  the  broadest  right  to  regulate 
the  admission  of  aliens  to  its  territory.  Declared  Mr.  Justice 
Gray  in  the  course  of  the  opinion  of  the  Supreme  Court  in  the  case 
of  Nishimura  Ekiu  v.  United  States : 

It  is  an  accepted  maxim  of  international  law,  that  every 
sovereign  nation  has  the  power,  as  inherent  in  sovereignty,  and 
essential  to  self-preservation,  to  forbid  the  entrance  of  foreigners 
within  its  dominions,  or  to  admit  them  only  in  such  cases  and 
upon  such  conditions  as  it  may  see  fit  to  prescribe.^ 

^  The  inquiry  suggests  itself  whether,  for  example,  a  provision  such  as  that 
contained  in  Art.  IV  of  the  treaty  of  reciprocity  between  the  United  States 
and  the  Hawaiian  Islands  of  Jan.  30,  1875,  Malloy's  Treaties,  I,  917,  declaring 
in  part  that  His  Hawaiian  Majesty  would  not  "make  any  treaty  by  which 
any  other  nation  shall  obtain  the  same  privileges,  relative  to  the  admission 
of  any  articles  free  of  duty,  hereby  secured  to  the  United  States",  may  ulti- 
mately be  deemed  sufficiently  adverse  to  the  family  of  nations  to  justify  a 
rule  of  prohibition. 

2  Declared  Mr.  Justice  White  in  Downes  v.  Bidwell,  182  U.  S.  244,  300: 
"It  may  not  be  doubted  that  by  the  general  principles  of  the  law  of  nations 
every  government  which  is  sovereign  within  its  sphere  of  action  possesses  as 
an  inherent  attribute  the  power  to  acquire  territory  by  discovery,  by  agree- 
ment or  treaty,  and  by  conquest."     Cf.  Fuller,  C.  J.,  id.,  369. 

3  142  U.  S.  651,  659,  citing  Vattel,  lib.  2,  §§  94,  100;  1  Phillimore,  3  ed.,  c. 

94 


ALIENS  EXCLUDED  BY  THE  UNITED  STATES      [§  60 

The  law  of  nations  has  not  as  yet  forbidden  a  State  to  exercise 
largest  discretion  in  establishing  tests  of  the  undesirability  of  aliens, 
and  to  that  end,  to  enforce  discriminations  of  its  own  devising. 
There  is  thus  apparent  a  sharp  distinction  between  the  legal  pro- 
priety and  ultimate  expediency  of  exclusion  laws.  A  State  may 
unwisely,  although  not  unlawfully,  exercise  the  full  measure  of 
its  privilege. 

§  60.    The  Same. 

The  United  States  permits  no  other  power,  as  Secretary  Gresham 
stated  in  1894,  to  question  its  authority  to  determine  what  aliens 
or  classes  of  aliens  are  undesirable  or  dangerous.^  Its  immigra- 
tion laws  exclude  a  variety  of  classes  embracing  all  idiots,  imbeciles, 
feeble-minded  persons,  epileptics,  insane  persons;  persons  who 
have  had  one  or  more  attacks  of  insanity  at  any  time  previously ; 
persons  of  constitutional  psychopathic  inferiority ;  persons  with 
chronic  alcoholism  ;  paupers  ;  professional  beggars  ;  vagrants ; 
persons  afflicted  with  tuberculosis  in  any  form  or  with  a  loathsome 
or  dangerous  contagious  disease ;  persons  not  comprehended 
within  any  of  the  foregoing  excluded  classes  who  are  found  to  be 
and  are  certified  by  the  examining  surgeon  as  being  mentally  or 
physically  defective,  such  physical  defect  being  of  a  nature  which 
may  affect  the  ability  of  such  alien  to  earn  a  living ;  persons  who 
have  been  convicted  of  or  admit  having  committed  a  felony  or 
other  crime  or  misdemeanor  involving  moral  turpitude ;  polyga- 

10,  §  220.  Cf.,  also,  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  705-707 ; 
The  Chinese  Exclusion  Case,  130  U.  S.  581,  606-611 ;  Lem  Moon  Sing  ii.  United 
States,  158  U.  S.  538 ;  Turner  v.  Williams,  194  U.  S.  279.  See  Mr.  Marcv, 
Secy,  of  State,  to  Mr.  Gadsden,  Minister  to  Mexico,  No.  54,  Oct.  22,  1855,  MS. 
last.  Mexico,  XVII,  54,  Moore,  Dig.,  IV,  71;  Mr.  Marcv,  Secy,  of  State,  to 
Mr.  Fay,  Minister  to  Switzerland,  No.  37,  Mar.  22, 1856,  MS.  Inst.  Switzerland, 
1,  47,  Moore,  Dig.,  IV,  72;  Mr.  Fish,  Secv.  of  State,  to  Washburne,  Sept.  17, 
1869,  MS.  Inst.  France,  XVIII,  297,  Moore,  Dig.,  IV,  74;  Mr.  Fish,  Secy,  of 
State,  to  Mr.  Weile,  Dec.  4,  1869,  57  MS.  Inst.  Consuls,  35,  Moore,  Dig.,  IV, 
74;  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Stillman,  Aug.  3,  1882,  l43  MS. 
Dom.  Let.  238,  Moore,  Dig.,  IV,  76;  Mr.  Pendleton,  Minister  to  Germany, 
to  Mr.  Bayard,  Secy,  of  State,  Nov.  16,  1885,  concerning  admi.ssion  by  Count 
Kalnoky,  Austrian  Premier,  of  right  of  Germany  to  refuse  sojourn  to  foreigners 
with  or  without  cause,  For.  Rel.  1886,  309,  Moore,  Dig.,  IV,  79,  also  note,  id., 
IV,  79 ;  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Lothrop,  Minister  to  Russia,  No.  95, 
July  1,  1887,  MS.  Inst.  Russia,  XVI,  518,  Moore,  Dig.,  IV,  80. 

1  See  communication  to  Mr.  Lament,  Dec.  22,  1894,  200  MS.  Dom.  Let. 
703,  Moore,  Dig.,  IV,  137;  Count  Welsersheimb,  Austro-Hungarian  Minister 
of  Foreign  Affairs,  to  Mr.  Grant,  Sept.  5,  1891,  For.  Rel.,  1891,  30,  Moore, 
Dig.,  IV,  149,  note;  President  Cleveland,  special  message,  Oct.  1,  1888,  Senate 
Ex.  Doc.  273,  50  Cong.,  1  Se.ss.,  Moore,  Dig.,  IV,  199-200;  Swavne,  J.,  in  the 
Passenger  Cases,  7  How.  283,  423:  Lapina  v.  Williams,  232  U.  S.,  78,  88; 
Clement  L.  Bouve,  Exclusion  and  Expulsion  of  Aliens  in  the  United  States, 
Washington,  1912,  3-14. 

95 


§  60]  RIGHTS  OF  POLITICAL  INDEPENDENCE 

mists,  or  persons  who  practice  polygamy  or  believe  in  or  advocate 
the  practice  of  polygamy.^ 

There  are  also  excluded  prostitutes,  or  persons  coming  into 
the  United  States  for  the  purpose  of  prostitution  or  for  any  other 
immoral  purpose ;  persons  who  directly  or  indirectly  procure  or 
attempt  to  procure  or  import  prostitutes  or  persons  for  the  pur- 
pose of  prostitution  or  for  any  other  immoral  purpose ;  persons 
who  are  supported  by  or  receive  in  whole  or  in  part  the  proceeds 
of  prostitution ;  persons  described  as  contract  laborers,  who  have 
been  induced,  assisted,  encouraged,  or  solicited  to  migrate  to  the 
United  States  by  offers  or  promises  of  employment,  whether  such 
offers  or  promises  are  true  or  false,  or  in  consequence  of  agreements, 
oral,  written  or  printed,  express  or  implied,  to  perform  labor 
therein  of  any  kind,  skilled  or  unskilled ;  persons  who  have  come 
in  consequence  of  advertisements  for  laborers  printed,  published 
or  distributed  in  a  foreign  country  ;  persons  likely  to  become  a  pub- 
lic charge  ;  persons  who  have  been  deported  under  any  of  the  pro- 
visions of  the  immigration  act,  and  who  may  again  seek  admission 
within  one  year  from  the  date  of  such  deportation,  unless  prior 
to  their  reembarkation  at  a  foreign  port  or  their  attempt  to  be 
admitted  from  foreign  contiguous  territory  the  Secretary  of  Labor 
shall  have  consented  to  their  re-applying  for  admission ;  persons 
whose  ticket  or  passage  is  paid  for  with  the  money  of  another, 
or  who  are  assisted  by  others  to  come,  unless  it  is  affirmatively 
and  satisfactorily  shown  that  such  persons  do  not  belong  to  one 
of  the  foregoing  classes.  There  are  further  excluded  persons 
whose  ticket  or  passage  is  paid  for  by  any  corporation,  association, 
society,  municipality  or  foreign  government,  either  directly  or 
indirectly ;  also  stowaways  (except  that  a  stowaway,  if  other- 
wise admissible,  may  be  admitted  in  the  discretion  of  the  Secre- 
tary of  Labor),  as  well  as  all  children  under  sixteen  years  of  age, 
unaccompanied  by  or  not  coming  to  one  or  both  of  their  parents, 
subject,  however,  to  a  limited  discretionary  right  of  admission 
given  the  Secretary  of  Labor.^ 

'  Act  of  Feb.  5, 1917,  Chap.  29,  §  3,  39  Stat.  875,  U.  S.  Comp.  Stat.  1918  ed., 
§  4289i  b. 

2  §  3  of  Act  of  Feb.  5,  1917,  39  Stat.  875.  This  Act  repealed  the  Acts  of 
Feb.  20,  1907,  34  Stat.  898,  and  of  March  3,  1903,  32  Stat.  1213.  See,  in  this 
connection,  Ex  parte  Bernat,  255  Fed.  429 ;  Department  of  Labor,  Bureau  of 
Immigration,  Immigration  Laws  and  Rules  of  May  1,  1917,  4  ed.,  Feb.,  1920; 
also  joint  resolution  approved  Oct.  19,  1918,  authorizing  the  readmission  to 
the  United  States  of  certain  aliens  who  were  conscripted  or  who  volunteered  for 
service  with  the  military  forces  of  the  United  States  or  co-belligerent  forces. 

Concerning  earlier  legislation  of  the  United  States  from  the  enactment  of 
the  Act  of  March  3,  1875  (IS  Stat.  Part  3,  p.  477)  until  that  of  March  22,  1904 

96 


ALIENS  EXCLUDED  BY  THE  UNITED  STATES       [§  60 

The  Act  of  June  5,  1920,  amendatory  of  the  Act  of  October  16, 
1918,  excluded  the  following  aliens  from  admission  into  the  United 
States : 

(a)  Aliens  who  are  anarchists  ; 

(6)  Aliens  who  advise,  advocate,  or  teach,  or  who  are  members 
of  or  affiliated  with  any  organization,  association,  society,  or 
group  that  advises,  advocates,  or  teaches,  opposition  to  all 
organized  government ; 

(c)  Aliens  who  believe  in,  ad\'ise,  advocate,  or  teach,  or  who 
are  members  of  or  affiliated  with  any  organization,  association, 
society,  or  group,  that  believes  in,  advises,  advocates,  or  teaches  : 
(1)  the  overthrow  by  force  or  violence  of  the  Government  of 
the  United  States  or  of  all  forms  of  law,  or  (2)  the  duty,  necessity, 
or  propriety  of  the  unlawful  assaulting  or  killing  of  any  officer 
or  officers  (either  of  specific  individuals  or  of  officers  generally) 
of  the  Government  of  the  United  States  or  of  any  other  or- 
ganized government,  because  of  his  or  their  official  character, 
or  (3)  the  unla^^^ul  damage,  injury,  or  destruction  of  property 
or (4)  sabotage ; 

(d)  Aliens  who  write,  publish,  or  cause  to  be  wTitten  or  pub- 
lished, or  who  knowingly  circulate,  distribute,  print,  or  display, 
or  knowingly  cause  to  be  circulated,  distributed,  printed,  pub- 
lished, or  displayed,  or  who  knowingly  have  in  their  possession 
for  the  purpose  of  circulation,  distribution,  publication,  or  dis- 
play, any  written  or  printed  matter,  advising,  advocating,  or 
teaching  opposition  to  all  organized  government,  or  advising, 
advocating,  or  teaching:  (1)  the  overthrow  by  force  or  violence 
of  the  Government  of  the  United  States  or  of  all  forms  of 
law,  or  (2)  the  duty,  necessity,  or  propriety  of  the  unlawful 
assaulting  or  killing  of  any  officer  or  officers  (either  of  specific 
individuals  or  of  officers  generally)  of  the  Government  of 
the  United  States  or  of  any  other  organized  government,  or 

(3)  the  unlawful  damage,  injury,  or  destruction  of  property,  or 

(4)  sabotage ; 

(e)  Aliens  who  are  members  of  or  affiliated  with  any  or- 
ganization, association,  society,  or  group,  that  ^^Tites,  cir- 
culates, distributes,  prints,  publishes,  or  displays,  or  causes 
to    be    written,    circulated,    distributed,    printed,    published, 

(33  Stat.  Part  1,  p.  144),  see  Moore,  Dig.,  IV,  151-187,  and  documents  there 
cited.  Also  Clement  L.  Bouve,  Laws  Governing  the  Exclusion  and  Expulsion 
of  Aliens  in  the  United  States,  Washington,  1912.  Illustrative  of  uncon- 
stitutional attempts  of  certain  States  of  the  I'nion  to  reguhvte  immigration, 
cf.  The  Passenger  Cases,  7  How.  2S3 ;  Henderson  v.  Mayor  of  New  'i'ork,  92 
U.  S.  259 ;  Chi  Lung  v.  Freeman,  92  U.  S.  275 ;  People  v.  "Compagnie  Generale 
Transatlantique,  107  U.  S.  59. 

VOL.   I  —  4  97 


§  60]  RIGHTS    OF   POLITICAL   INDEPENDENCE 

or  displayed,  or  that  has  in  its  possession  for  the  purpose 
of  circulation,  distribution,  publication,  issue,  or  display,  any 
written  or  printed  matter  of  the  character  described  in  sub- 
division (d)} 

The  laws  of  the  United  States  forbid,  save  under  specified 
conditions,  the  coming  of  Chinese  laborers  into  the  United  States.^ 
Moreover  the  immigration  act  of  1917  excludes  (unless  otherwise 
provided  for  by  existing  treaties)  persons  who  are  natives  of  islands 
not  possessed  by  the  United  States  adjacent  to  the  Continent  of 
Asia,  situate  south  of  the  twentieth  parallel  of  latitude  north, 
west  of  the  one  hundred  and  sixtieth  meridian  of  longitude  east 
from  Greenwich,  and  north  of  the  tenth  parallel  of  latitude  south, 
or  who  are  natives  of  any  country,  province  or  dependency  sit- 
uate on  the  Continent  of  Asia  west  of  the  one  hundred  and  tenth 
meridian  of  longitude  east  from  Greenwich  and  east  of  the  fiftieth 
meridian  of  longitude  east  from  Greenwich  and  south  of  the 
fiftieth  parallel  of  latitude  north,  except  that  portion  of  such 
territory  between  the  fiftieth  and  sixty-fourth  meridians  of  longi- 
tude east  from  Greenwich  and  the  twenty-fourth  and  thirty-eighth 
parallels  of  latitude  north.^ 

The  existing  law  applies  also  an  illiteracy  test,  excluding  under 
certain  limitations  and  numerous  exemptions,  all  aliens  over  six- 
teen years  of  age,  physically  capable  of  reading,  who  cannot  read 
the  English  language  or  some  other  language  or  dialect,  including 
Hebrew  or  Yiddish.^ 

1  The  following  paragraph  is  added :    "  For  the  purpose  of  this  section  : 

(1)  the  giving,  loaning  or  promising  of  money  or  any  other  thing  of  value  to  be 
used  for  the  advising,  advocacy,  or  teaching  of  any  doctrine  above  enumerated 
shall  constitute  the  advising,  advocacy,  or  teaching  of  such  doctrine;    and 

(2)  the  giving,  loaning,  or  promising  of  money  or  any  thing  of  value  to  any 
organization,  association,  society,  or  group  of  the  character  above  described 
shall  constitute  affiliation  therewith;  but  nothing  in  this  paragraph  shall  be 
taken  as  an  exclusive  definition  of  advising,  advocacy,  teaching,  or  affiliation." 
For  the  Act  of  Oct.  16,  1918,  see  40  Stat.  1012. 

2  See  Treaty,  Laws,  and  Rules  Governing  the  Admission  of  Chinese,  De- 
partment of  Labor,  Bureau  of  Immigration,  1917.  Acts  of  May  6,  1882,  22 
Stat.  58;  July  5,  1884,  23  Stat.  115;  Sept.  13,  1888,  25  Stat.  476;  May  5, 
1892,  27  Stat.  25;  Nov.  3,  1893,  28  Stat.  7;  joint  resolution  of  July  7,  1898, 
30  Stat.  751 ;  April  30,  1900,  31  Stat.  141 ;  April  29,  1902,  32  Stat,  part  1,  176; 
April  27,  1904,  33  Stat.  394,  428;   Feb.  5,  1917,  39  Stat.  Part  1,  874. 

For  the  text  of  the  treaty  between  the  United  States  and  China  of  Nov. 
17,  1880,  see  Malloy's  Treaties,  I,  239;  for  that  of  the  convention  regu- 
lating Chinese  immigration  of  March  17,  1894,  and  terminated  Dec.  7,  1904, 
id.,  241.  Concerning  the  operation  of  the  Chinese  exclusion  laws  and  their 
relation  to  existing  treaties  between  the  United  States  and  China,  cf.  Moore, 
Dig.,  IV,  187-238,  and  documents  there  cited;  also  Clement  L.  Bouve,  Ex- 
clusion and  Expulsion  of  Aliens  in  the  United  States,  85-111. 

3  §  3,  Act  of  Feb.  5,  1917,  39  Stat.  875. 

^  §  3  of  Act  of  Feb.  5,  1917,  39  Stat.  875;  also  amendment  of  June  5,  1920, 

98 


REGULATION  BY  CONVENTION  [§  GO 

An  enlightened  State  may  be  unwilling  to  incorporate  in  a 
treaty  of  commerce  a  definite  restriction  designed  to  prevent  the 
immigration  of  its  nationals  (other  than  persons  of  specially  favored 
classes,  such  as  officials,  teachers,  students,  merchants  or  travelers 
for  curiosity  or  pleasure)  by  the  other  contracting  party.  A  dis- 
crimination based  upon  race  or  nationality  may  be  deemed  im- 
proper for  formal  acknowledgment  in  such  a  compact.  On  the 
other  hand,  with  full  appreciation  of  the  right  as  well  as  the  eco- 
nomic problem  of  a  particular  foreign  country,  a  State  may  in- 
formally yet  not  the  less  positively  agree  so  to  check  the  emigra- 
tion of  its  nationals  destined  to  the  territory  of  the  former  as  to 
eliminate  the  danger  lest  large  numbers  of  undesired  classes  of 
its  nationals  seek  access  thereto  to  the  embarrassment  of  the 
territorial  sovereign.^ 

States  not  infrequently  undertake  to  regulate  by  convention 
matters  pertaining  to  immigration.  The  United  States  has  re- 
exempting  from  this  test  an  alien  whose  admission  is  within  five  years  after 
the  enactment  of  the  law,  requested  by  a  citizen  of  the  United  States  who 
served  in  the  military  or  naval  forces  of  the  United  States  during  the  war  with 
the  Imperial  German  Government,  and  with  the  approval  of  the  Secretary  of 
Labor,  marries  the  alien  at  a  United  States  immigration  station.  §  3  of  the 
Act  of  Feb.  5,  1917,  contains  numerous  provisos  which  serve  to  establish 
limitations  in  its  operation,  with  respect,  for  example,  to  the  contract-labor 
and  reading-test  provisions. 

1  In  view  of  the  broad  privileges  accorded  the  nationals  of  Japan  to  enter, 
travel  or  reside  in  the  territories  of  the  United  States  by  virtue  of  Art.  I  of  the 
treaty  of  commerce  and  navigation  of  Nov.  22,  1894,  Malloy's  Treaties,  I, 
1028,  it  was  not  unreasonable  that  the  treaty  which  superseded  it,  concluded 
Feb.  21,  1911,  Charles'  Treaties,  77,  should  contain  no  specific  reference  to 
any  restriction  to  be  applied  to  any  particular  class  of  Japanese  nationals, 
such  as  laborers.  It  should  be  observed,  however,  that  Baron  Uchida,  the 
Japanese  Plenipotentiary  and  Ambassador  at  Washington,  upon  proceeding 
to  the  signature  of  the  treaty,  made  a  declaration  to  the  effect  that  "the  Im- 
perial Japanese  Government  are  fully  prepared  to  maintain  with  equal  effec- 
tiveness the  limitation  and  control  which  they  have  for  the  past  three  years 
exercised  in  regulation  of  the  emigration  of  laborers  to  the  United  States." 
Id.,  82. 

In  1907,  the  Japanese  Government,  pursuant  to  a  verbal  understanding 
between  Mr.  Root,  Secretary  of  State,  and  Baron  Takahira,  Japanese  Am- 
bassador at  Washington,  undertook  to  prevent  the  emigration  of  Japanese 
laborers  to  the  United  States,  and  by  that  process  to  remove  occasion  for  the 
actual  exclusion  by  the  United  States  of  such  individuals.  The  purport  of 
this  agreement  was  set  forth  in  the  Report  of  the  Commissioner-General  of 
Immigration  for  the  fiscal  year  ending  June  30,  1907,  pp.  125-126.  It  should 
be  observed,  however,  that  President  Roosevelt  on  March  14,  1907,  i-^sued 
an  executive  order  declaring  that  passports  issued  by  the  Government  of 
Japan  to  citizens  of  that  country  or  Korea,  and  who  were  laborers,  to  go  to 
Mexico,  to  Canada  and  to  Hawaii,  were  being  used  for  the  purpose  of  enabling 
the  holders  thereof  to  enter  the  continental  territory  of  the  United  States  to 
the  detriment  of  labor  conditions  therein ;  and  he  thereby  ordered  that  such 
individuals,  possessed  of  such  passports,  and  coming  from  Mexico,  Canada 
or  Hawaii,  be  refused  permission  to  enter  the  continental  territory  of  the 
United  States.     Am.  J.,  I,  450. 

99 


§  60J  RIGHTS   OF   POLITICAL   INDEPENDENCE 

peatedly  done  so.^  The  right  of  exclusion  is  not  necessarily  in- 
capable of  restriction  by  such  process.^ 

The  Supreme  Court  of  the  United  States  has  declared  it  to  be 
entirely  settled  that  the  authority  of  Congress  to  prohibit  aliens 
from  coming  within  the  United  States,  and  to  regulate  their  coming, 
includes  authority  to  impose  conditions,  upon  the  performance  of 
which  the  continued  liberty  of  the  alien  to  reside  within  the  bounds 
of  the  country  may  be  made  to  depend ;  that  a  proceeding  to  en- 
force such  regulations  is  not  a  criminal  prosecution  within  the 
meaning  of  the  Fifth  and  Sixth  Amendments  to  the  Constitution ; 
that  such  an  inquiry  may  be  properly  placed  upon  an  executive 
department  or  subordinate  officials  thereof,  and  that  the  findings 
of  fact  reached  by  such  officials,  after  a  fair  though  summary  hear- 
ing, may  constitutionally  be  made  conclusive,  as  they  are  made 
by  the  provisions  of  the  Act  of  Congress.^ 

The  attempt  of  a  foreign  State  to  assist  or  compel  the  emigra- 
tion of  its  criminals,  paupers,  incurably  diseased  or  otherwise 
undesirable  nationals,  will  always  be  resisted  by  the  country  to 
whose  territory  they  are  directed.^  No  State  is  obliged  or  willing 
to  bear  the  domestic  burdens  of  any  other.  The  United  States, 
as  has  been  observed,  regards  the  voluntary  character  of  the  coming 
of  aliens  to  its  shores  as  essential ;  and  hence  it  opposes  immigra- 

^  Art.  I  of  immigration  treaty  between  the  United  States  and  China  of 
Nov.  17,  1880,  Malloy's  Treaties,  I,  239;  also  immigration  treaty  between 
same  States  of  March  17,  1894,  id.,  241.  See,  also,  Argument  of  Hon.  John  W. 
Foster  on  Treaty  Rights  of  Chinese  Subjects  concerning  Admission  and  Resi- 
dence in  the  United  States,  before  Senate  Committee  on  Immigration,  Jan.  23, 
1902,  Senate  Rep.  776,  57  Cong.,  1  Sess.,  Part  2,  p.  32. 

2  Mr.  Everett,  Secy,  of  State,  to  Mr.  Mann,  Dec.  13,  1852,  41  MS.  Dom. 
Let.  138,  Moore,  Dig..  IV,  70;  Field,  J.,  in  The  Chinese  Exclusion  Case,  130 
U.  S.  581,  609.  See  Report  of  Mr.  Foster,  Secy,  of  State,  to  the  President, 
Jan.  7,  1893,  expressing  the  opinion  that  a  bill  pending  in  the  Senate  for  the 
absolute  suspension  of  immigration  for  one  year  would  not  conflict  with  any 
existing  treaties  of  the  United  States.  Senate  Ex.  Doc.  25,  52  Cong.,  2  Sess., 
Moore,  Dig.,  IV,  153. 

3  Zakonaite  v.  Wolf,  226  U.  S.  272,  275,  citing  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698,  730;  United  States  v.  Zucker,  161  U.  S.  475,  481 ;  Wong 
Wing  V.  United  States,  163  U.  S.  228,  237 ;  Turner  v.  Williams,  194  U.  S.  279, 
289;  Chin  Yow  v.  United  States,  208  U.  S.  8,  11;  Tang  Tun  v.  Edsell,  223 
U.  S.  673,  675 ;  Low  Wah  Suey  v.  Backus,  225  U.  S.  460,  468 ;  also  Bugajewitz 
V.  Adams,  228  U.  S.  585 ;   Tiaco  v.  Forbes,  228  U.  S.  549,  556. 

^  See  correspondence  between  Mr.  King,  Minister  to  Great  Britain,  and  the 
Duke  of  Portland,  1789,  concerning  the  emigration  of  Irish  national  prisoners, 
7  MS.  Despatches  from  England,  Moore,  Dig.,  IV.  142-144;  also  the  Duke  of 
Portland  to  Lord  Cnrnwallis,  id.,  Moore,  Dig.,  IV,  144;  Mr.  Fish,  Secy,  of 
State,  to  Mr.  Moulding,  Dec.  26,  1872,  97  MS.  Dom.  Let.  87,  Moore.  Dig., 
IV.  145;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Cramer,  Dec.  3,  1881,  MS.  Inst. 
Switzerland,  II,  124,  Moore,  Dig..  IV.  145;  Mr.  J.  Davis,  Acting  Secv.  of 
State,  to  Mr.  Lowell,  Mav  25,  1883,  For.  Rel.  1883,  422.  423,  Moore,  Dig.,  IV, 
146;  President  Arthur,  Annual  Message,  Dec.  4,  1883.  For.  Rel.  1883,  iv, 
Moore,  Dig.,  IV,  147;  in  re  Nikolaus  Bader,  For.  Rel.  1891,  17-30. 

100 


IN  GENERAL  [§  61 

tion  assisted  or  constrained  by  foreign  agencies.^  The  existing 
statutory  law  does  not,  however,  purport  to  exclude  persons  whose 
tickets  or  passage  to  the  United  States  are  paid  for  by  another, 
if  there  be  a  sufficient  showing  that  such  individuals  do  not  belong 
to  the  excluded  classes,  and  provided  also  that  payment  is  not  in 
behalf  of  any  organization  or  municipality,  or  foreign  government.^ 

(b) 
Expulsion 

(i) 
§  61.   In  General. 

A  State  may  doubtless  decide  for  itself  whether  the  continued 
presence  within  its  territory  of  a  particular  alien  is  so  adverse  to 
the  national  interests  that  the  country  needs  to  rid  itself  of  him. 
That  right  is  possessed  by  the  Ignited  States.^  If  such  be  its  de- 
cision, the  right  of  expulsion  must  be  acknowledged.  Expulsion 
may,  however,  savor  of  an  abuse  of  power  unless  the  decision  to 
expel  be  founded  on  a  bona  fide  belief  as  to  the  evil  effect  upon  the 
State  of  the  continued  presence  of  the  individual  within  its  domain. 
A  conclusion  in  favor  of  expulsion  need  not  necessarily  coincide 
with  one  to  which  the  State  of  which  the  alien  is  a  national 
would,  under  like  circumstances,  assent.  On  the  other  hand,  a 
decision  to  expel  must  not  be  one  which  no  enlightened  State 
could  in  good  faith  be  reasonably  expected  to  reach. ^  Thus 
arbitrary  action,  either  in  the  choice  of  the  individual  expelled, 

^  Mr.  Hav,  Secy,  of  State,  to  Mr.  Wilson,  Minister  to  Roumania,  July  17, 
1902,  For.  Rel.  1902,  910,  912,  Moore,  Dig.,  IV,  151.  See  extracts  from 
correspondence  between  Mr.  Bayard,  Secy,  of  State,  and  Sir  L.  West,  British 
Minister  at  Washington,  in  1887,  Moore,  Dig.,  IV,  148;  Case  of  John  Gibbons 
and  family,  For.  Rel.  1892,  266-272,  Moore,  Dig.,  IV,  149-151. 

2  §  3,  Act  of  Feb.  5,  1917,  39  Stat.  875. 

'  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  7II7714. 

*  "The  just  rule  would  seem  to  be  that  no  nation  can  single  out  for  expulsion 
from  its  territory  an  individual  citizen  of  a  friendly  nation  without  special  and 
sufficient  grounds  therefor.  And  even  when  such  grounds  exist  the  expulsion 
should  be  effected  with  as  little  injury  to  the  individual  and  his  interests  as 
may  be  compatible  with  the  safety  and  interest  of  the  country  which  expels 
him."  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Smythe,  Minister  to  Haiti,  Nov. 
5,  1894,  For.  Rel.  1895,  II,  801. 

"The  modern  theory  and  practice  of  Christian  nations  is  believed  to  be 
founded  on  the  principle  that  the  expulsion  of  a  foreigner  is  justifiable  only 
when  his  presence  is  detrimental  to  the  welfare  of  the  State,  and  that  when 
expulsion  is  resorted  to  as  an  extreme  police  measure  it  is  to  be  accomplished 
with  due  regard  to  the  convenience  and  the  personal  and  property  interests 
of  the  person  expelled."  Mr.  Olnev,  Secv.  of  State,  to  Mr.  Yoimg,  Minister 
to  Guatemala,  .Jan.  30,  1896,  For.  Rel.  1895,  II,  775,  Moore,  Dig.,  IV,  102,  103. 
Cf.,  also,  Mr.  Ralston,  Umpire  in  the  Boffolo  Case,  before  Italian-Venezuelan 
Commission,  under  protocol  of  Feb.  13,  1903,  Ralston's  Reports,  699-700. 

101 


§  61]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

or  in  the  method  of  expulsion,   would  indicate  internationally 
illegal  action.^ 

The  State  having  recourse  to  expulsion  must  be  prepared  to 
make  known  the  reasons  for  its  action  to  the  State  to  which  the 
alien  belongs.^  The  former  does  not  appear,  however,  to  be  re- 
quired to  furnish  evidence  in  justification  of  its  conduct  as  a  con- 
dition precedent  to  such  action.^ 

(ii) 
§  62.    Method  of  Expulsion. 

Arbitrary  action  is  frequently  apparent  in  the  method  by  which 
expulsion  is  effected.  That  applied  by  Guatemala  in  the  case 
of  one  Hollander,  an  American  citizen,  is  illustrative.  Having 
been  arrested  February  8,  1889,  on  a  charge  of  calumny  and  for- 
gery, Hollander  was  held  in  custody  until  May  14,  following,  when, 
before  the  trial  of  the  case,  he  was  expelled  from  the  country  by 
executive  decree,  and  without  opportunity  to  see  his  family  or 
make  any  business  arrangements.^ 

^  Report  of  M.  Rolin-Jacquemyns  on  Expulsion,  to  the  Institute  of  Inter- 
national Law,  1888,  Annuaire,  X,  229;  also  project  of  declaration,  adopted 
by  the  Institute  Sept.  8,  1888,  id.,  244;  also  proceedings  of  the  Institute, 
Hamburg  Meeting,  1891,  Annuaire,  XI,  273-321;  Rules  for  the  Admission 
and  Expulsion  of  Foreigners,  adopted  by  the  Institute,  at  Geneva,  Sept.  9, 
1892,  Annuaire,  XII,  218;  preliminary  discussion,  id.,  185.  An  English  trans- 
lation of  the  rules  adopted  in  1892  is  contained  in  J.  B.  Scott,  Resolutions  of 
the  Institute,  104.  Cf.,  also.  Prof,  von  Bar,  in  Clunet,  XIII,  5;  Tchernoff, 
La  Protection  des  Nationaux  Residant  a  L'Stranger,  449-451 ;  Bore  hard,  Diplo- 
matic Protection,  §§  27-32,  bibliography,  id.,  p.  869;  Clement  L.  Bouve, 
Laws  Governing  the  Exclusion  and  Expulsion  of  Aliens  in  the  United  States, 
Washington,  1912. 

^  Declared  Mr.  Ralston,  Umpire,  in  the  course  of  a  well-considered  opinion 
in  the  Boffolo  Case,  before  the  Italian-Venezuelan  Commission,  under  protocol 
of  Feb.  13,  1903:  "The  country  exercising  the  power  must,  when  occasion 
demands,  state  the  reason  of  such  expulsion  before  an  international  tribunal, 
and  an  insufficient  reason  or  none  being  advanced,  accepts  the  consequences." 
Ralston's  Reports,  696,  705. 

According  to  Art.  XXX  of  the  regulations  of  the  Institute  of  International 
Law,  of  1892 :  "The  act  decreeing  expulsion  shall  be  notified  to  the  expelled 
indi\'idual.  The  reasons  on  which  it  is  based  must  be  stated  in  fact  and  in  law." 
J.  B.  Scott,  Resolutions,  109. 

^  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Smvthe,  Minister  to  Haiti,  Jan.  24, 
1895,  For.  Rel.  1895,  II,  809,  Moore,  Dig.,  IV,  87.  Concerning  the  irnportant 
case  of  A.  F.  Jaurett,  an  American  citizen  expelled  from  Venezuela  in  1904, 
cf.  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  Minister  to  Venezuela,  Feb.  28, 
1907,  For.  Rel.,  I,  908,  774-778;  Same  to  Same,  June  21,  1907,  id.,  800-801; 
Mr.  Churion,  Venezuelan  Minister  of  Foreign  Affairs,  to  Mr.  Russell,  July  24, 
1907,  id.,  806.  See,  also,  agreement  of  Feb.  13,  1909,  for  the  settlement  of 
the  claim.  For.  Rel.  1909,  629.  See,  also,  Mr.  Root,  Secv.  of  State,  to  Mr. 
Furniss,  Minister  to  Haiti,  Feb.  24,  1906,  For.  Rel.  1906,  II,  870. 

*  In  commenting  on  this  case  Mr.  Olney,  Secy,  of  State,  said :  "After  de- 
liberating three  months  and  more,  with  Hollander  absolutely  in  its  power,  the 
executive  authority  expelled  him  in  a  manner  that  defeated  the  course  of 

102 


CAUSES  OF  EXPULSION  [§  63 

While  the  law  of  nations  does  not  forbid  a  State  to  expel  an 
alien  who  has  his  domicile  or  residence  within  its  territory/  the 
just  exercise  of  the  right  in  such  a  case  calls  for  special  care.  The 
method  and  procedure  employed  must  be  designed  to  afford 
greater  indulgence  to  the  individual  concerned  than  where  he  is 
a  transient  visitor.^ 

(iii) 
§  63.    Causes  of  Expulsion. 

States  differ  with  respect  to  causes  which  lead  them  to  expel 
aliens.  It  may  be  doubted  whether  any  general  rules  of  classifica- 
tion or  limitation  are  acknowledged  to  exist.  In  practice  widest 
latitude  is  enjoyed.  Thus  a  State  may  with  reason  expel  from 
its  territory  one  who  commits  acts  deemed  unlawful  by  its  own 
laws,  although  not  so  regarded  by  those  of  the  State  of  which  the 
alien  is  a  national.^  It  may  doubtless  expel  the  alien  who  persists 
in  teaching  or  proselyting  in  behalf  of  a  religious  sect  whose  tenets 
are  deemed  gravely  objectionable.'*     The  fact   that   the    United 

justice  in  the  courts  of  the  country;  that  violated  the  rules  of  international 
law  and  the  existing  provisions  of  the  treaty,  and  was  contrary  to  the  practice 
of  civilized  nations."  Communication  to  Mr.  Young,  Minister  to  Guatemala, 
Jan.  30,  1896,  For.  Rel.  1895,  II,  775,  Moore,  Dig.,  IV,  102,  108. 

See,  also.  Case  of  F.  Scandella,  For.  Rel.  1898,  1137-1147,  referred  to  in 
Moore,  Dig.,  IV,  108;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Smythe,  Minister 
to  Haiti,  Nov.  5,  1894,  For.  Rel.  1895,  II,  801;  Bluefields  Cases,  1894,  Moore, 
Dig.,  IV,  99-101,  and  documents  there  cited;  Paquet  Case  (expulsion, 
before  Belgian-Venezuelan  Commission  under  protocol  of  Mar.  7,  1903, 
Ralston's  Reports,  Venezuelan  Arbitrations,  1903,  265 ;  Oliva  Case,  before 
It  dim- Venezuelan  Commission,  under  protocol,  Feb.  13,  1903,  id.,  771; 
Boffolo  Case,  before  same  Commission,  id.,  696;  Maal  Cape  before  Nether- 
lands-Venezuelan Commission,  under  protocol,  Feb.  28,  1903,  id.,  914.  Cf.,  also, 
decision  of  the  Umpire,  M.  Desjardins,  Dec.  26,  1898,  in  the  Ben  Tillet  Case 
between  Great  Britain  and  Belgium,  Clunet,  XXVI,  203  ;  Cases  of  Expulsion 
considered  by  Mexican  Claims  Commission  under  Act  of  Congi-ess  of  March 
3,  1849,  Moore,  Arbitrations,  IV,  3334 ;  by  American-Mexican  Claims  Com- 
mission, convention  of  1868,  id.,  3347;  by  Spanish  Claims  Commission,  1871, 
id.,  3350;  by  United  States  and  Venezuelan  Claims  Commission,  convention 
of  1885,  id.,  3354. 

1  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  724 ;  also  dissenting 
opinions  of  Justices  Brewer  and  Field,  and  Chief  Justice  Fuller,  respectively, 
id.,  734,  757  and  761. 

2  See  communication  of  Mr.  Olney,  Secy,  of  State,  Jan.  30,  1896,  in  Hol- 
lander Case,  Moore,  Dig.,  IV,  102-104;  Report  of  M.  Rolin-Jacquemyns, 
Anmmire,  X,  229,  233;  Article  XLI  of  Rules  adopted  by  Institute  of  Inter- 
national Law,  Sept.  9,  1892,  Annvaire,  XII,  218,  225,  J.  B.  Scott,  Resolutions, 
110.     Also  Borchard,  Diplomatic  Protection,  §  29. 

3  Case  of  Paul  Edwards,  expelled  from  Belgium  on  account  of  practicing 
in  that  country  the  art  of  healing  without  medicines,  by  the  laying  on  of  hands, 
hypnotic  suggestion  and  personal  magnetism,  in  violation  of  the  Belgian  law, 
For.  Rel.  1900,  45-53,  Moore,  Dig.,  IV,  93. 

''  Cf.  case  of  Lewis  T.  Cannon  and  Jacob  Muller,  expelled  from  Prussia, 
1900,  on  account  of  their  preaching  and  practicing  the  Mormon  faith.  For. 
Rel.  1901,  165,   Moore,  Dig.,  IV,   135;    also  For.  Rel.  1898,  347-354;    alsa 

103 


§  63]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

States  does  not  inquire  into  the  religious  views  of  its  citizens  and 
seeks  to  protect  all  equally  without  regard  to  their  opinions  on 
such  matters,  is  hardly  indicative  of  the  absence  of  a  right  of  foreign 
States  to  proceed  on  a  different  principle/  The  tendency  of  en- 
lightened States  is,  however,  favorable  to  much  toleration. 

It  cannot  be  said  that  as  yet  the  law  of  nations  forbids  a  State, 
in  the  absence  of  treaty,  to  expel  from  its  domain  aliens  on  account 
of  their  belonging  to  particular  races." 

It  may  be  observed  that  the  deportation  of  an  alien  who  enters 
a  State  in  violation  of  its  immigration  or  exclusion  laws,  is  merely 
to  be  regarded  as  incidental  to  their  enforcement.^ 

case  of  expulsion  of  Mormon  missionaries  from  Germany  in  1908,  For.  Rel. 
1908,  366-371.  Contra  Mr.  Uhl,  Asst.  Secv.  of  State,  to  Mr.  Doty,  U.  S. 
Consul  at  Tahiti,  June  25,  1895,  For.  Rel.  1897,  124,  Moore,  Dig.,  IV,  133. 

^  The  protracted  controyersy  between  the  United  States  and  Russia  con- 
cerning the  treatment  of  American  Jews  in  Russian  territory,  related  chiefly 
to  the  interpretation  of  the  treaty  of  December  18,  1832.  Malloy's  Treaties, 
II,  1514.  Cf.  in  this  connection  Moore,  Dig.,  IV,  111-129,  and  documents 
there  cited,  and  in  particular,  communication  of  Mr.  Blaine,  Secy,  of  State, 
to  Mr.  Foster,  Minister  to  Russia,  No.  87,  July  29,  1881,  For.  Rel.  1881,  1030, 
Moore,  Dig.,  IV,  119.  See,  also,  Termination  of  the  Treaty  of  1832  between 
the  United  States  and  Russia,  Hearing  before  Committee  on  Foreign  Affairs, 
House  of  Representatiyes,  Dec.  11,  1911,  reyised  edition,  1911;  Treaty  of 
1832  with  Russia,  Hearing  before  Committee  on  Foreign  Relations,  United 
States  Senate,  62  Cong.,  on  S.  J.  Res.  60,  Dec.  13,  1911,  Washington,  1911; 
President  Taft,  message  to  the  Senate,  Dec.  18,  1911,  transmitting  copy  of 
notice  forwarded  by  the  Secretary  of  State  to  the  American  Ambassador  at 
St.  Petersburg,  relatiye  to  the  termination  of  the  treaty  of  1832,  Senate  Doc. 
No.  161,  62  Cong.,  2  Sess.  Concerning  treatment  by  Turkish  authorities  of 
American  Jews  in  Palestine,  cf.  Moore,  Dig.,  IV,  130-132. 

"The  following  ca.ses,  a  few  among  many,  which  haye  occurred  in  inter- 
national practice  indicate  a  wide  range  of  grounds  for  expulsion  :  for  spread- 
ing socialistic  propaganda,  Juares  case;  for  promoting  and  organizing  a  strike, 
Ben  Tillett's  case ;  for  practicing  the  art  of  healing  without  a  license,  Edwards' 
case;  for  writings  or  speeches  derogatory  to  the  goyernment  or  the  army, 
case  of  Father  Forbes  in  France;  Hottmann  case  in  Switzerland;  Kennan 
case  in  Russia ;  for  anarchy,  Kropotchine  case  in  Switzerland ;  for  preaching 
polygamy.  Mormon  missionaries  in  Germany;  for  spying  or  suspicion  thereof, 
Hofmann  and  Richtofen  cases  in  Switzerland ;  for  giying  immoral  perform- 
ances, Belgium ;  for  intrigues  against  the  State,  expulsion  of  Spanish  am- 
bassador from  England  in  1584  and  similar  cases,  or  against  third  states. 
General  Boulanger  and  Count  Chambord  in  Belgium;  and,  among  the  cases 
with  which  the  United  States  has  had  to  deal,  the  expulsion  by  European 
countries,  particularly  Germany  and  Austria,  of  natiyes  of  those  countries  who 
by  naturalization  in  the  United  States  haye  eyaded  military  service."  E.  M. 
Borchard,  Diplomatic  Protection,  §  28.  In  connection  with  the  last  clause 
of  the  foregoing  statement  see,  for  example,  Mr.  Bacon,  Acting  Secy,  of  State, 
to  Mr.  Francis,  American  Ambassador  at  Vienna,  April  13,  1907,  concerning 
the  case  of  Selig  Fink,  a  naturalized  American  citizen  of  Austrian  origin.  For. 
Rel.  1908,  20. 

^  Cf.  communication  of  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Hamlin, 
No.  74,  June  19,  1882,  MS.  Inst.  Spain,  XIX,  139,^Moore,  Dig.,  IV,  109;  also 
Sir  J.  Pauncefote,  British  ^Minister  at  Washington,  to  Mr.  Blaine,  Secv.  of 
State,  Nov.  25,  1891,  For.  Rel.  1892,  255,  Moore,  Dig.,  IV,  229. 

'  See  provisions  of  §§  19  and  20  of  the  Immigration  Act  of  Feb.  5,  1917, 
39  Stat.  874,  889-891 ;  also  Act  of  Oct.  16,  1918,  to  exclude  and  expel  from  the 

104 


EXPULSION  AS  A  WAR  MEASURE  [§  64 

Obviously  a  State  which,  in  expelHng  an  ahen,  has  recourse  to 
methods  which  violate  its  own  constitution,  is  to  be  deemed  guilty 

of  a  denial  of  justice,  and  is  so  regarded  by  the  United  States.^ 

*■ 

(iv) 

§  64.   Expulsion  as  a  War  Measure. 

The  exigencies  of  war  may  justify  the  action  of  a  belligerent 
in  expelling  from  its  territory  aliens  whose  presence  there  might 
not,  under  normal  circumstances,  be  regarded  as  dangerous  to  the 
safety  of  the  State  or  gravely  detrimental  to  its  welfare.  The 
bare  fact  of  war  suffices  to  excuse  the  expulsion  of  aliens  who  are 
nationals  of  the  enemy  should  the  territorial  sovereign  deem  it 
expedient  to  take  such  a  step.  The  United  States  has  availed 
itself  of  such  a  right,^  which  it  has  also  necessarily  acknowledged 
to  be  possessed  by  other  belligerents.  It  has  had  occasion,  how- 
ever, to  complain  of  the  harsh  methods  by  which  other  States 
when  engaged  in  war  have  had  recourse  to  expulsion.^ 

It  may  be  observed  that  the  United  States,  while  a  belligerent 
in  the  course  of  The  World  War,  did  not  expel  alien  enemies  en 
masse,  but  sought  to  protect  itself  against  them  by  other  means.^ 

United  States  aliens  who  are  members  of  the  anarchistic  and  similar  classes, 
40  Stat.  1012;  Act  of  May  10,  1920,  to  deport  certain  undesirable  aliens  and 
to  deny  re-admission  to  those  deported. 

1  See,  for  example,  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  Minister  to 
Venezuela,  Feb.  28,  1907,  concerning  the  case  of  A.  F.  Jaurett,  For.  Rel.  1908, 
774,  777. 

^  See  statement  in  Moore,  Dig.,  IV,  138,  paraphrasing  early  legislation  of 
the  United  States,  embraced  in  the  acts  of  July  6,  1798,  1  Stat.  577,  and 
July  6,  1812,  2  Stat.  781. 

^  See,  for  example,  Mr.  Olney,  Secy,  of  State,  to  Mr.  Dupuv  de  Lome, 
Spanish  Minister,  Sept.  27,  1895,  For.  Rel.  1895,  II,  1229,  Moore,  Dig.,  IV, 
139 ;  also  Mr.  Hay,  Secy,  of  State,  to  Mr.  Choate,  American  Ambassador  at 
London,  No.  494,  Nov.  14, 1900,  MS.  Inst.  Great  Britain,  XXXIII,  505,  Moore, 
Dig.,  IV,  141. 

*  After  the  conclusion  of  the  armistice  Nov.  11,  1918,  and  prior  to  the 
establishment  of  peace  with  Germany,  the  United  States  caused  the  de- 
portation of  numerous  alien  enemies  whose  conduct  had  previously  been  such 
as  to  necessitate  their  internment  during  the  period  of  hostilities.  Thus  a 
number  of  such  individuals  who  had  not  complied  with  the  immigration  regu- 
lations were  deported.  "Furthermore,  in  accordance  with  an  agreement 
entered  into  with  the  German  Government,  most  of  the  interned  civilians  of 
German  birth,  as  well  as  subjects  of  other  nations,  who  formed  part  of  the 
crews  of  German  merchant  ships,  were  repatriated  during  the  summer  of  1919." 
Mr.  Adee,  Second  Assist.  Secy,  of  State,  to  the  author,  Nov.  6,  1919. 

See,  also.  Act  of  April  16,  1918,  40  Stat.  531,  amending  Rev.  Statutes,  sec. 
4067,  and  authorizing  the  President,  in  the  event  of  war,  to  direct  the  conduct 
to  be  observed  by  the  United  States  toward  its  alien  enemies.  Also  proclama- 
tions of  President  Wilson,  No.  1364,  April  6,  1917,  No.  1408,  Nov.  16,  1917, 
No.  1417,  Dec.  11,  1917,  No.  1443,  April  19,  1918,  and  No.  1506.  Dec.  23,  1918; 
also  broad  provisions  of  Act  of  May  10,  1920,  "to  deport  certain  undesirable 
aliens,  and  to  deny  re-admission  to  those  deported." 

105 


§  64]  RIGHTS    OF   POLITICAL   INDEPENDENCE 

A  belligerent  may  not  unreasonably  expel  from  its  territory 
neutral  nationals  who,  although  domiciled  therein,  endeavor  to 
escape  the  common  burdens  of  military  service.^ 

5 
CERTAIN  NON-POLITICAL  ACTS  OF  SELF-DEFENSE 

§  65.    In  General. 

An  act  of  self-defense  is  that  form  of  self-proteotion  which  is 
directed  against  an  aggressor  or  contemplated  aggressor.  No 
act  can  be  so  described  which  is  not  occasioned  by  attack  or  fear 
of  attack.  When  acts  of  self-preservation  on  the  part  of  a  State 
are  strictly  acts  of  self-defense,  they  are  permitted  by  the  law  of 
nations,  and  are  justified  on  principle,  even  though  they  may  con- 
flict with  the  normal  rights  of  other  States.^ 

Within  the  foregoing  limits,  the  steps  which  a  State  may  take 
in  order  to  defend  itself,  within  its  own  domain,  are  generally  re- 
garded as  the  mere  exercise  of  the  right  of  political  independence. 
Military  and  naval  forces  may  be  established,  and  fortifications 
erected.  Such  instrumentalities  may,  however,  by  reason  of  their 
magnitude  or  location,  be  out  of  proportion  to  the  legitimate  de- 
fensive requirements  of  the  State ;  and  in  such  case,  the  circum- 
stance that  they  are  developed  or  established  within  places  under 
the  control  of  the  territorial  sovereign  does  not  lessen  their  threat- 
ening aspect,  or  diminish  the  menace  to  the  general  peace.  The 
international  society  may,  therefore,  not  unjustly  endeavor  to 
restrain  that  sovereign  from  acquiring  a  military  power  obviously 
designed  to  enable  the  possessor  to  fulfill  aggressive  ambitions 
rather  than  safeguard  its  territories  from  attack.^ 

^  Cf.  Neutral  Persons  and  Property  in  Belligerent  Territory,  Military 
Service,  Theory  of  the  Belligerent  Right,  infra,  §  G25. 

2  "The  first  interest  of  a  society,  national  or  international,  is  justice;  and 
justice  is  violated  when  any  State  which  has  not  failed  in  its  duty  is  subjected 
to  aggression  intended  for  the  preservation  or  perfection  of  another."  West- 
lake,  2  ed.,  I,  312.     Compare  Rivier,  I,  277. 

^  Hall,  Higgins'  7  ed.,  4.5,  where  it  is  said  :  "If  a  country  offers  an  indirect 
menace  through  a  threatening  disposition  of  its  military  force,  and  still  more 
through  clear  indications  of  dangerous  ambition  or  of  aggressive  intentions, 
and  if  at  the  same  time  its  armaments  are  brought  up  to  a  pitch  evidently 
in  excess  of  the  requirements  of  self-defence,  so  that  it  would  be  in  a  position 
to  give  effect  to  its  intentions,  if  it  were  allowed  to  choose  its  opportunity, 
the  State  or  States  which  find  themselves  threatened  may  demand  securities, 
or  the  abandonment  of  the  measures  which  excite  their  fear,  and  if  reasonable 
satisfaction  be  not  given  they  may  protect  themselves  by  force  of  arms."  The 
soundness  of  this  statement  has  been  illustrated  by  the  treatment  applied  to 
Germany  through  the  military,  naval  and  aerial  clauses  of  the  Treaty  of 
Versailles,  of  June  28,  1919.     Cf.  Part  V  thereof. 

106 


THE  CASE   OF   THE  CAROLINE  [§  66 

The  terms  of  the  Covenant  of  the  League  of  Nations  announce 
the  recognition  by  the  members  thereof  of  the  principle  that  the 
maintenance  of  peace  requires  the  reduction  of  national  arma- 
ments to  the  lowest  point  consistent  with  the  national  safety  and 
the  enforcement  by  common  action  of  international  obligations. 
While  the  Council  of  the  League  is  empowered  merely  to  formulate 
plans  for  reduction,  subject  to  adoption  by  the  members,  the  latter, 
after  the  adoption  of  them,  agree  not  to  exceed  the  limits  fixed  by 
those  plans  without  the  concurrence  of  the  Council.^  This  ar- 
rangement is  significant  proof  of  the  international  interest  al- 
ready evinced  in  the  military  activities  of  the  individual  State. 

On  grounds  of  self-defense  a  State  may,  as  will  be  seen,  deem 
itself  justified  in  interfering  with  the  political  independence  of 
another.^  On  similar  grounds  a  State  may  employ  force  outside 
of  its  own  domain,  as  in  the  territory  of  a  neighboring  countrj', 
or  upon  the  high  seas  in  restraint  of  a  foreign  vessel,  without, 
however,  contemplating  such  interference  and  frankly  disclaiming 
any  design  to  effect  it.  As  such  acts  are,  in  times  of  peace,  nor- 
mally regarded  as  unlawful  because  in  derogation  of  the  rights 
of  the  State  whose  territory  is  invaded  or  whose  ships  are  subjected 
to  control,  there  is  general  unwillingness  to  recognize  any  excuse 
as  justifying  what  is  commonly  forbidden,  save  under  special  if 
not  extraordinary  circumstances.  These  may  arise.  They  are 
to  be  observed  in  certain  enlightening  cases  affecting  the  United 
States.  These  cases  illustrate  what  has  been  and  what  may  be 
done  without  betokening  interference  with  rights  of  political  in- 
dependence or  without  impairment  of  the  territorial  integrity 
of  a  State  whose  domain  is  invaded.^ 


Invasion  of  Territory 

(1) 

§  66.   The  Case  of  The  Caroline. 

During  an  insurrection  in  Canada  in  1837,  the  insurgents  se- 
cured recruits  and  supplies  from  the  American  side  of  the  border. 
There  was  an  encampment  of  one  thousand  armed  men  organized 

^  Art.  VIII.  It  is  there  also  provided  that  the  plans  formulated  by  the 
Council  shall  be  subject  to  reconsideration  and  revision  at  least  every  ten 
years. 

^  Intervention,  Self -Defense,  infra,  §  70. 

^  Intervention,  In  General,  infra,  §  69. 

107 


§  66]  RIGHTS    OF   POLITICAL   INDEPENDENCE 

at  Buffalo,  and  located  at  Navy  Island  in  Upper  Canada ;  there 
was  another  encampment  of  insurgents  at  Black  Rock,  also  a 
Canadian  point.  The  Caroline  was  a  small  steamer  employed 
by  these  encampments.  On  December  29,  1837,  while  moored 
at  Schlosser,  on  the  American  side  of  the  Niagara  River,  and  while 
occupied  by  some  thirty-three  American  citizens,  the  steamer  was 
boarded  by  an  armed  body  of  men  from  the  Canadian  side,  who 
attacked  the  occupants.  The  latter  merely  endeavored  to  escape. 
Several  were  wounded ;  one  was  killed  on  the  dock ;  only  twenty- 
one  were  afterwards  accounted  for.  The  attacking  party  fired 
the  steamer  and  set  her  adrift  over  Niagara  Falls.  In  1841,  upon 
the  arrest  and  detention  of  one  Alexander  McLeod,  in  New 
York,  on  account  of  his  alleged  participation  in  the  destruction 
of  the  vessel.  Lord  Palmerston  avowed  responsibility  for  the  de- 
struction of  the  Caroline  as  a  public  act  of  force  in  self-defense,  by 
persons  in  the  British  service.  He  therefore  demanded  McLeod's 
release.  McLeod  was,  however,  tried  in  New  York,  and  acquitted.^ 
In  1842  the  two  Governments  agreed  on  principle  that  the  require- 
ments of  self-defense  might  necessitate  the  use  of  force.  ]\Ir. 
Webster,  Secretary  of  State,  denied,  however,  that  the  necessity 
existed  in  this  particular  case,  while  Lord  Ashburton,  the  British 
Minister,  apologized  for  the  invasion  of  American  territory.^ 
Said  Mr.  Webster  in  the  course  of  a  communication  to  the  British 
Minister,  August  6,  1842 : 

Undoubtedly  it  is  just,  that,  while  it  is  admitted  that  excep- 
tions growing  out  of  the  great  law  of  self-defence  do  exist, 
those  exceptions  should  be  confined  to  cases  in  which  the  ne- 
cessity of  that  self-defence  is  instant,  overwhelming,  and  leav- 
ing no  choice  of  means,  and  no  moment  for  deliberation.^ 

The  facts  in  the  case  of  the  Caroline  seem  to  have  satisfied  these 
requirements.^  There  was  a  threatened  attack  on  British  terri- 
tory which  the  sovereign  thereof  possessed  the  right  to  pre- 
vent and  resist.  In  this  respect  that  which  required  protection 
differed  sharply  from  a  mere  national  interest  or  policy.'' 

1  Infra,  §  249. 

2  The  statement  of  facts  concerning  the  Caroline  is  based  on  a  fuller  state- 
ment contained  in  Moore,  Dig.,  II,  409-411.  See,  also,  Lord  Ashburton, 
British  Minister,  to  Mr.  Webster,  Secv.  of  State,  July  28,  1842,  Moore,  Dig., 
II,  411;  Mr.  Webster,  Secy,  of  State,  to  Lord  Ashburton,  Aug.  6,  1842,  id.,ll, 
412. 

3  Webster's  Works,  VI,  301,  302,  Moore,  Dig.,  II,  412. 

*Hall,  Higgins'  7  ed.,  279-280;    Westlake,  2  ed.,  I,  313-314;    Autobiog- 
raphy of  Lord  Campbell,  2  ed.,  1881,  19,  quoted  in  Moore,  Dig.,  II,  414. 
*  In  the  Case  of  the  Fur  Seal  Arbitration,  between  the  United  States  and 

108 


THE   CASE   OF   THE  CAROLINE        •  [§66 

Again,  the  foreign  State  within  whose  territory  the  hostile 
operations  were  in  progress,  lacked  the  power  at  the  time  to  pro- 
tect its  neighbor  by  removing  the  source  of  danger.  Thus,  the 
British  force  did  in  one  sense  that  which  the  United  States  itself 
would  have  done,  had  it  possessed  the  means  and  disposition  to 
perform  its  duty.  Finally,  there  was  instant  necessity,  requiring 
immediate  action.^  It  was  the  presence  of  all  of  these  circum- 
stances which  combined  to  justify  the  British  plea.^ 

Great  Britain,  1893,  the  former  State  sought  justification  for  its  conduct  in 
preventing  the  IviUing  of  seals  m  Bering  Sea  by  foreign  vessels,  on  grounds  of 
.self-defense.  This  contention  was  successfully  met  by  British  counsel  by 
showing  to  the  satisfaction  of  the  Court  that  what  the  United  States  sought 
to  defend  was  an  interest  rather  than  a  right  of  property  recognized  as  such 
by  international  law.  See  oral  argument  of  Mr.  Carter  in  behalf  of  the  United 
States,  Fur  Seal  Arbitration,  Proceedings,  XII,  101-102,  246-249;  oral  argu- 
ment of  Sir  Charles  Russell,  id.,  XIII,  29S-300,  301-308. 

1  Declared  Sir  Charles  Russell  in  the  course  of  his  oral  argument  in  the  Fur 
Seal  Arbitration  :  "The  occasions  for  acts  of  self-defence,  or  .self-preservation, 
are  occasions  of  emergency,  —  sudden  emergency  —  occa.sions  when  there  is 
no  time  (to  use  the  expressive  language  of  an  eminent  statesman  of  the  United 
States,  to  which  I  shall  refer),  —  for  deliberation,  no  time  for  contrivance,  no 
time  for  warning,  no  time  for  diplomatic  expostulation.  That  is  the  only  idea 
at  the  bottom  of  all  those  exceptional  acts  of  self-defence  or  self-preservation." 
Fur  Seal  Arbitration,  Proceedings,  XIII,  299. 

2  Hall,  Higgins'  7  ed.,  §  84. 

On  grounds  of  self-defense  the  United  States,  while  at  war  with  Great 
Britain,  invaded,  in  1814,  West  Florida,  which  was  then  Spanish  territory. 
Moore,  Dig.,  II,  402,  and  documents  there  cited. 

In  1818,  by  reason  of  the  failure  of  Spanish  authorities  to  check  incursions  of 
Spanish  Indians  into  American  territory,  General  Jackson  invaded  West 
Florida  and  occupied  St.  Marks,  Pensacola  and  Fort  Carlos  de  Barangas. 
See  statement  in  Moore,  Dig.,  II,  403-404,  and  documents  there  cited  from 
American  State  Papers,  For.  Rel.,  IV,  496,  776-808;  President  Monroe, 
Annual  Message,  Nov.  16,  1818,  id.,  21,5,  Moore,  Dig.,  II,  404;  Mr.  Adams, 
Secy,  of  State,  to  Mr.  Erving,  American  Minister  to  Spain,  Nov.  28,  1818, 
American  State  Papers,  For.  Rel.,  IV,  539,  Moore,  Dig.,  II,  405,  in  which  it 
was  declared  that  General  Jackson  took  posssession  of  the  places  occupied 
by  him  "not  in  a  spirit  of  hostility  to  Spain,  but  as  a  necessary  measure  of 
self-defense ;  giving  notice  that  they  should  be  restored  whenever  Spain  should 
place  commanders  and  a  force  there  able  and  willing  to  fulfill  the  engagements 
of  Spain  towards  the  United  States,  or  of  restraining  by  force  the  Florida 
Indians  from  hostilities  against  their  citizens."  Cf.  also  Memorandum  by 
J.  R.  Clark,  Jr.,  Solicitor,  Dept.  of  State,  on  the  Right  to  Protect  Citizens  in 
Foreign  Countries  by  Landing  Forces,  Department  of  State,  Division  of  In- 
formation, Oct.  1912,  p.  48. 

Amelia  Island,  Spanish  territory,  at  the  mouth  of  St.  Mary's  River  near 
the  boundary  of  Georgia,  was  taken  in  1817  by  adventurers,  claiming  to  act 
under  authority  of  the  South  American  insurgent  governments.  Feeble 
effort  was  made  by  Spain  to  recover  possession.  The  island  was  maile  a 
channel  for  illicit  introduction  of  slaves  into  the  United  States,  and  for  other 
purposes  detrimental  to  the  safety  of  the  country.  The  United  States  there- 
fore occupied  the  island  in  1817."  Said  Mr.  Adams,  Secy,  of  State,  to  Mr. 
Hyde  de  Neuville,  French  Minister,  Jan.  27,  1818  :  "  WTien  an  island  is  occupied 
by  a  nest  of  pirates,  harassing  the  commerce  of  the  United  States,  they  may 
be  pursued  and  driven  from  it,  by  authority  of  the  Ignited  States,  even  though 
such  island  were  nominally  under  the  jurisdiction  of  Spain,  Spain  not  exercis- 
ing over  it  any  control."  MS.  Notes  to  For.  Leg.,  Moore,  Dig.,  II,  408.  See 
also  Mr.  Adams,  Secy,  of  State,  to  Mr.  Erving,  Minister  to  Spain,  Nov.  11, 

109 


§67]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

(2) 

§  67.   The  Pursuit  of  ViUa,  1916. 

For  some  time  prior  to  March,  1916,  the  frontier  of  the  United 
States  along  the  lower  Rio  Grande  was  thrown  into  a  state  of 
constant  apprehension  and  turmoil  because  of  frequent  and  sudden 
incursions  into  American  territory  and  depredations  and  murders 
on  American  soil  by  Mexican  bandits,  who  took  the  lives  and  de- 
stroyed the  property  of  American  citizens,  sometimes  carrying  such 
individuals  across  the  international  boundary  with  the  booty 
seized.^  The  bandit  Francisco  Villa  early  in  March,  of  that  year, 
after  having  been  guilty  of  the  barbarous  slaughter  of  innocent 
American  citizens  in  INIexican  territory,^  proceeded  slowly  with 
his  followers  towards  the  American  frontier.  The  Mexican  au- 
thorities appear  to  have  been  fully  cognizant  of  his  movements, 
which  were  not,  however,  hindered.^  On  the  night  of  March  9, 
1916,  Villa  and  his  band  crossed  the  boundary  and  made  an  un- 
provoked attack  on  American  soldiers  and  citizens  at  Columbus, 
New  Mexico,  thereby  causing  the  death  of  sixteen  Americans 
and  the  destruction  by  fire  of  the  principal  buildings  of  the  town.^ 

1817,  MS.  Inst.  United  States  Ministers,  VIII,  169,  Moore,  Dig.,  II,  406; 
President  Monroe,  Annual  Message,  Dec.  2,  1817,  American  State  Papers,  For. 
Rel.,  IV,  130,  Moore,  Dig.,  II,  407. 

1  The  language  employed  in  the  text  is  substantially  that  of  Mr.  Lansing, 
Secy,  of  State,  in  a  communication  to  the  Secj'.  of  Foreign  Relations  of  the 
de  facto  Government  of  Alexico,  June  20,  1916,  Am.  J.,  X,  Supp.,  211,  212, 
where  he  added  :  "American  garrisons  have  been  attacked  at  night,  American 
soldiers  killed  and  their  equipment  and  horses  stolen;  American  ranches 
have  been  raided,  property  stolen  and  destroyed,  and  American  trains  -uTecked 
and  plundered.  The  attacks  on  Brownsville,  Red  House  Ferry,  Progreso 
Post  Office,  and  Las  Peladas,  all  occurring  during  September  last,  are  typical. 
In  these  attacks  on  American  territory,  Carrancista  adherents,  and  even 
Carrancista  soldiers  took  part  in  the  looting,  burning  and  kilUng.  Not  only 
were  these  murders  characterized  by  ruthless  brutality,  but  uncivihzed  acts 
of  mutilation  were  perpetrated.  Representations  were  made  to  General 
Carranza  and  he  was  emphatically  requested  to  stop  these  reprehensible  acts 
in  a  section  which  he  has  long  claimed  to  be  under  the  complete  domination 
of  his  authority.  Notwithstanding  these  representations  and  the  promise  of 
General  Nafarrete  to  prevent  attacks  along  the  international  boundary,  in 
the  following  month  of  October  a  passenger  train  was  wrecked  by  bandits  and 
several  persons  killed  seven  miles  north  of  Brownsville,  and  an  attack  was 
made  upon  United  States  troops  at  the  same  place  several  days  later.  Since 
these  attacks  leaders  of  the  bandits  well  known  both  to  Mexican  civil  and 
military  authorities,  as  well  as  to  American  officers,  have  been  enjojang  with 
impunity  the  liberty  of  the  towns  of  northern  Mexico.  So  far  has  the  indiffer- 
ence of  the  de  facto  government  to  these  atrocities  gone  that  some  of  these 
leaders,  as  I  am  advised,  have  received  not  onlj^  the  protection  of  that  govern- 
ment, but  encouragement  and  aid  as  well." 

2  Id.,  214.  3  j^ 

*  See  telegram  of  Mr.  Polk,  Acting  Secy,  of  State,  to  all  American  consular 
officers  in  Mexico,  and  to  Mr.  Parker  at  Mexico  City,  March  14,  1916,  Am.  J., 
X,  Supp.,  184. 

110 


THE  PURSUIT  OF  VILLA,  1916  [§  67 

Thereupon,  the  marauders  were  driven  back  across  the  border 
by  American  cavalry,  and  subsequently,  as  soon  as  a  sufficient 
force  could  be  collected,  were  pursued  into  Mexico  by  an  American 
military  force  in  the  effort  to  capture  or  destroy  them.^ 

On  March  10,  the  Mexican  authorities  proposed  to  the  Govern- 
ment of  the  United  States  a  plan  permitting  Mexican  forces  to 
enter  American  territory  in  pursuit  of  bandits,  and  acknowledging 
a  reciprocal  right  to  American  forces  to  cross  into  Mexican  terri- 
tory "  if  the  raid  effected  at  Columbus  should  unfortunately  be 
repeated  at  any  other  point  of  the  border."  ^  In  accepting  this 
proposal  on  March  13,^  the  Department  of  State  was  under  the 
impression  that  the  Mexican  authorities  consented  to  the  punitive 
expedition  against  Villa.'*  Those  authorities  denied,  however, 
that  they  had  yielded  consent,^  and  demanded  withdrawal  of  the 
American  force. ^  They  also  thereupon  suspended  negotiations 
relative  to  terms  of  the  agreement  for  the  reciprocal  passage  of 
troops  across  the  border.^     In  the  meantime  the  United  States 

1  Cf.  telegram  of  Mr.  Polk,  Acting  Secy,  of  State,  to  all  American  consular 
officers  in  Mexico,  and  to  Mr.  Parker  at  Mexico  City,  March  14,  1916,  Am.  J., 
X,  Supp.,  184;  also  communication  of  Mr.  Lansing,  of  June  20,  above  cited, 
id.,  211,  214,  where  it  was  said:  "Without  cooperation  or  assistance  in  the 
field  on  the  part  of  the  de  facto  government,  despite  repeated  requests  by  the 
United  States,  and  without  apparent  recognition  on  its  part  of  the  desira- 
bility of  putting  an  end  to  the  systematic  raids,  or  of  punishing  the  chief 
perpetrators  of  the  crimes  committed,  because  they  menaced  the  good  relations 
of  the  two  countries,  American  forces  pursued  the  lawless  bands  as  far  as  Parral, 
where  the  pursuit  was  halted  by  the  hostihty  of  Mexicans,  presumed  to  be 
loyal  to  the  de  facto  government,  who  arrayed  themselves  on  the  side  of  out- 
lawry and  became  in  effect  the  protectors  of  Villa  and  his  band." 

2  Telegram  of  Mr.  Silliman,  American  Consul  at  Guadalajara,  to  Mr. 
Lansing,  Secy,  of  State,  March  10,  1916,  Am.  J.,  X,  Supp.,  181. 

^  Mr.  Lansing,  Secv.  of  State,  to  Mr.  SiUiman,  American  Consul,  telegram, 
March  13,  1916,  id.,  182. 

<  Mr.  Polk,  Acting  Secy,  of  State,  to  Mr.  Arredondo,  Confidential  Agent 
cf  the  de  facto  Mexican  Government,  March  19,  1916,  id.,  186. 

6  Mr.  Arredondo  to  Mr.  Polk,  March  18,  1916,  id.,  185;  same  to  Mr. 
Lansing,  April  13,  1916,  id.,  192. 

In  the  course  of  his  note  of  June  20,  1916,  to  the  Foreign  Secretary  of  the 
de  facto  Mexican  Government,  Mr.  Lansing  declared:  "It  is  admitted  that 
American  troops  have  crossed  the  international  boundary  in  hot  pursuit  of 
the  Columbus  raiders  and  without  notice  to  or  the  consent  of  your  Govern- 
ment, but  the  several  protestations  on  the  part  of  this  Government  by  the 
President,  by  this  department,  and  by  other  American  authorities,  that  the 
object  of  the  expedition  was  to  capture,  destroy,  or  completely  disperse  the 
Villa  bands  of  outlaws  or  to  turn  this  duty  over  to  the  Mexican  authorities 
when  assured  that  it  would  be  effectivelv  fulfilled,  have  been  carried  out  in 
good  faith  by  the  United  States."     Id.,  211,  220-221. 

6  Mr.  Arredondo  to  Mr.  Lansing,  April  13,  1916,  id.,  192. 

7  Id.  In  the  course  of  his  note  of  June  20,  1916,  Mr.  Lansing  declared  : 
"It  was  General  Carranza  who  suspended  through  your  note  of  April  12th 
all  discussions  nnd  negoti'^tions  for  an  agreement  along  the  lines  of  the  protocols 
between  the  United  States  and  Mexico  concluded  during  the  period  1882- 
1896,  under  which  the  two  countries  had  so  successfully  restored  peaceful 

111 


§  67]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

had  given  deJSnite  assurance  that  the  object  of  the  punitive  ex- 
pedition was  merely  to  eliminate  the  marauders,  and  that  it  would 
not  trench  upon  the  sovereignty  of  Mexico  or  ripen  into  interven- 
tion.^ Conferences  were,  however,  held  between  the  American  and 
Mexican  military  authorities  at  the  border  with  a  view  to  solving 
the  problem.  These  proved  abortive.^  While  they  were  in  prog- 
ress at  El  Paso,  an  attack  was  made  on  the  night  of  May  5,  by  a 
band  of  Mexicans  at  Glen  Springs,  Texas,  about  twenty  miles  north 
of  the  border,  resulting  in  the  killing  of  American  soldiers  and  civil- 
ians, the  burning  and  sacking  of  property,  and  the  carrying  off  of 
two  Americans  as  prisoners.^  On  May  10,  another  body  of  Amer- 
ican troops  crossed  the  border,  penetrating  68  miles  into  Mexican 
territory  in  pursuit  of  the  marauders,  but  recrossing  into  Texas, 
on  May  22.  On  that  date  Mr.  Aguilar,  the  Mexican  Foreign  Sec- 
retary, addressed  to  Mr.  Lansing  a  note  which,  in  "  discourteous 
tone  and  temper  ",  impugned  the  good  faith  of  the  United  States, 
intimated  that  its  design  was  to  extend  its  sovereignty  over  Mexi- 
can territory,  and  demanded  a  definition  of  American  political  in- 
tentions as  well  as  a  withdrawal  of  the  punitive  expedition.^  In 
his  response  repudiating  such  designs  on  the  part  of  the  United 
States,  Secretary  Lansing  adverted  to  the  deplorable  conditions 
which  gave  rise  to  the  expedition  and  the  opposition  which  it  had 
encountered  from  Mexican  authorities,  and  declared  that  in  view  of 
the  increasing  menace  to  American  territory  from  Mexican  ban- 
dits through  the  inactivity  or  encouragement  of  the  Carranza 
forces,  it  was  unreasonable  to  expect  the  United  States  to  with- 
draw its  troops,  or  to  refrain  from  sending  others  into  Mexico 
when  they  offered  the  only  efficient  means  of  protecting  American 
life  and  property.^     Moreover,  he  declared  that  the  existing  in- 

conditions  on  their  common  boundary."  Am.  J.,  X,  Supp.,  215.  See,  for 
example,  the  agreement  of  June  4,  1896,  Malloy's  Treaties,  I,  1177. 

1  See,  for  example,  statement  by  President  Wilson,  March  25,  1916,  Am.  J., 
X,  i^upp.,  191 ;  also  telegram  of  Mr.  Lansing,  to  Mr.  Rodgers,  Special  Repre- 
sentative, April  14,  1916,  id.,  196;  Resolution  adopted  bv  the  Senate  March  17, 
1916,  Cong.  Record,  LIII,  4274. 

^  It  should  be  observed  that  these  conferences  were  productive  of  a  memoran- 
dum ad  referendum  regarding  the  terms  of  withdrawal  of  the  American  troops. 
Gen.  Carranza  refused  to  ratify  the  arrangement  because  he  was  dissatisfied 
with  the  conditions  imposed  upon  the  Mexican  Government.  Cf.  note  of 
Mr.  Lansing  of  June  20,  1916,  Am.  /.,  X,  Supp.,  211,  216.  Gen.  Carranza 
apparently  demanded  the  unconditional  withdrawal  of  the  troops,  objecting 
to  the  claim  of  the  United  States  to  suspend  it  if  any  further  incident  might 
happen  which  should  lead  it  to  believe  that  Mexico  was  unable  to  protect  the 
frontier  as  agreed  upon.     See  note  of  Mr.  Aguilar  of  May  22,  1916,  id.,  197,  200. 

'  Note  of  Mr.  Lansing  of  June  20,  1916,  id.,  211,  217-218. 

*  Am.  J.,  X,  Supp.,  197. 

'  See  communication  to  the  Mexican  Foreign  Secretary,  June  20,  1916,  id., 

112 


THE  PURSUIT  OF  VILLA,   1916  [§  67 

ability  of  the  Mexican  Government  to  check  marauding  attacks 
served  to  make  stronger  the  obligation  of  the  United  States  to 
prevent  them.^  On  June  21,  the  American  expedition  was  in 
conflict  with  a  Mexican  force  which  attacked  it.^ 

After  further  diplomatic  negotiations  in  July,  the  problem  was 
referred  to  a  Joint  Commission  representative  of  the  two  Govern- 
ments.^ In  November,  1916,  the  commissioners  signed  a  protocol 
providing  for  the  withdrawal  of  the  American  troops,  but  which 
was  not  ratified  by  General  Carranza.^  The  Commission  ad- 
journed its  meetings  in  January,  1917,  and  the  same  month  orders 
were  issued  for  the  withdrawal  of  the  troops.  But  Villa  remained 
uncaptured. 

It  is  believed  that  conditions  justified  the  pursuit  of  Villa  by 
an  American  force.  The  argument  of  Secretary  Lansing  was 
based  upon  facts  which  offered  no  alternative.  At  no  time  did 
the  United  States  admit  that  it  lacked  the  right  under  the  circum- 

211,  in  the  course  of  which  he  said :  "The  LTnited  States  Government  cannot 
and  will  not  allow  bands  of  lawless  men  to  establish  themselves  upon  its  borders 
with  liberty  to  invade  and  plunder  American  territory  with  impunity  and, 
when  pursued,  to  seek  safety  across  the  Rio  Grande,  relaying  upon  the  plea  of 
their  Government  that  the  integrity  of  the  soil  of  the  Mexican  Republic  must 
not  be  invaded,"  223. 

In  justification  of  the  pursuit  into  Mexican  territory  in  1836,  of  predatory 
Indians,  plundering  and  invading  American  soil  from  the  Mexican  border, 
Mr.  Forsyth,  Secy,  of  State,  in  a  communication  to  Mr.  Ellis,  Minister  to 
Mexico,  Dec.  10,  1836,  said  in  part:  "You  will  find  no  difficulty  in  showing 
to  the  Mexican  Government  that  it  [the  right]  rests  upon  principles  of  the  law 
of  nations,  entirely  distinct  from  those  on  which  war  is  justified  —  upon  the 
immutable  principles  of  self-defense  —  upon  the  principles  which  justify 
decisive  measures  of  precaution  to  prevent  irreparable  evil  to  our  own  or  to  a 
neighboring  people."  Brit,  and  For.  State  Pap.,  XXVI,  1419,  Moore,  Dig.,  II, 
420.  See,  also,  statement  in  Moore,  Dig.,  II,  418-420,  citing  Brit,  and  For. 
Pap.,  XXV,  1089,  1092,  1093,  1094,  1095,  1096,  1097,  1098,  1099;  Mr.  Evarts, 
Secv.  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  Aug.  13,  1878,  For.  Rel. 
1878,  572,  Moore,  Dig.,  II,  425. 

1  Am.  J.,  X,  Supp.,  225. 

^  In  this  connection  see  "Mexico  and  the  United  States",  by  George  A. 
Finch,  Am.  ./.,  XI,  399.  It  will  be  recalled  that  the  President,  iii  June,  1916, 
summoned  the  entire  National  Guard  of  the  LTnited  States  to  the  Mexican 
border  in  order  to  protect  American  territory  from  invasion. 

^  The  American  Commissioners  were  Messrs.  George  Gray,  Franklin  K. 
Lane,  and  John  R.  Mott.  Prof.  Leo  S.  Rowe  was  Secretary  of  the  American 
Commission.  The  Mexican  Commissioners  were  Messrs.  Luis  Cabrera, 
Ignacio  Bonillas,  and  Alberto  J.  Pani. 

^  On  signing  the  protocol  the  American  Commissioners  informed  their 
Mexican  colleagues  that,  as  a  matter  of  national  necessity,  the  policy  of  the 
Government  must  be  to  reserve  the  right  to  pursue  marauders  coming  from 
Mexico  into  the  United  States,  so  long  as  conditions  in  northern  Mexico  were 
in  their  existing  abnormal  state.  It  was  added  that  such  a  pursuit  should  not, 
however,  be  regarded  by  Mexico  as  in  any  way  hostile  to  the  Carranza  Govern- 
ment, for  those  marauders  were  the  common  enemies  of  the  two  countries. 
See  Statement  issued  by  the  Commission  Nov.  24,  1916,  New  York  Times, 
Nov.  25,  1916,  p.  1. 

113 


§  67]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

stances  to  penetrate  Mexican  territory.     No  political  end  was 
sought  to  be  accomplished.^ 


§  68.  Acts  on  the  High  Seas.  The  Case  of  The  Virginius. 
What  may  be  done  on  the  high  seas  is  illustrated  by  the  case 
of  the  Virginius.  That  vessel,  the  property  of  Cuban  insurgents, 
and  employed  in  aid  of  an  existing  insurrection  in  Cuba,  was 
registered  in  the  United  States,  and  carried  its  flag.  Upon  later 
investigation  it  appeared  that  such  registry  was  fraudulently  se- 
cured by  imposition  on  the  American  authorities,  and  that  the 
vessel  was  not  entitled  to  fly  the  American  flag.  On  October 
31,  1873,  the  Virginius  was  captured  on  the  high  seas  by  the  Span- 
ish cruiser  Tornado,  taken  to  Santiago  de  Cuba,  where  fifty-three 
of  the  persons  on  board,  American,  British  and  Cuban,  were 
charged  with  piracy,  tried  by  court  martial,  and  shot.^  The 
case  raised  two  distinct  legal  questions :  first,  the  right  to  capture 
the  vessel ;  and  secondly,  the  right  to  deal  summarily  with  persons 
found  on  board.^  Concerning  the  right  of  capture  the  discussion 
between  the  United  States  and  Spain  proceeded  on  unsatisfactory 
lines.  The  latter  pleaded  in  defense  that  the  Virginius  was  en- 
gaged in  a  piratical  expedition;  also  that  her  fraudulent  registry 
deprived  her  of  the  right  to  claim  protection  of  the  American  flag.^ 
It  was  agreed  by  a  protocol  of  November  29,  1873,  that  Spain 

1  Declared  President  Wilson  in  the  course  of  an  address  at  Long  Branch, 
Sept.  2,  1916:  "We  ventured  to  enter  Mexican  territory  only  because  there 
were  no  military  forces  in  Mexico  that  could  protect  our  border  from  hostile 
attack  and  our  own  people  from  violence,  and  we  have  committed  there  no 
single  act  of  hostility  or  interference  even  with  the  sovereign  authority  of  the 
Republic  of  Mexico  herself.  It  was  a  plain  case  of  the  violation  of  our  own 
sovereignty  which  could  not  wait  to  be  vindicated  by  damage,;  and  for  which 
there  was  no  other  remedy.  The  authorities  of  Mexico  were  powerless  to 
prevent  it."  President  Wilson's  State  Papers  and  Addresses,  edited  by 
Albert  Shaw,  New  York,  1917,  311.  Concerning  the  brief  movement  of  Ameri- 
can troops  into  Mexico  June  15,  1919,  in  consequence  of  the  wounding  of 
persons  in  El  Paso,  Texas,  by  forces  of  Villa  in  conflict  with  the  troops  of 
Gen.  Carranza  at  Juarez,  c/.  New  York  Times,  June  16,  June  17  and  June  18, 
1919. 

2  Concerning  the  Virginius  see  statement  in  Moore,  Dig.,  II,  895,  citing 
H.  Ex.  Doc.  30,  43  Cong.,  1  Sess.,  29,  and  73,  For.  Rel.  1874,  923-1117;  Presi- 
dent Grant,  special  message,  Jan.  5,  1874,  H.  Ex.  Doc.  30,  43  Cong.,  1  Sess.,  1, 
Moore,  Dig.,  II,  900;  For.  Rel.  1875,  II,  1250;  Mr.  Fish,  Secy,  of  State,  to 
the  Spanish  Minister,  April  18,  1874,  For.  Rel.  1875,  II,  1178,  1192,  Moore, 
Dig.,  II,  980. 

3  Concerning  this  question,  c/.  infra,  §  232.  It  is  to  be  observed  that  the 
British  Government  made  no  objection  to  the  seizure  of  the  vessel  or  to  the 
detention  of  British  persons  on  board.  It  did  protest,  however,  against  the 
treatment  to  which  they  were  subjected. 

*  For.  Rel.  1874,  923-1117.     See,  also,  Moore,  Dig.,  II,  967-968. 

114 


ACTS  ON  THE  HIGH  SEAS  [§  68 

should  restore  the  vessel,  and  the  survivors  of  the  passengers  and 
crew,  and  salute  the  American  flag  on  a  specified  date,  unless  Spain 
could  prove  to  the  satisfaction  of  the  United  States  that  the  Vir- 
giniiis,  at  the  time  of  her  capture,  was  not  entitled  to  carry  the  flag 
of  the  latter.  In  such  case  the  salute  was  to  be  dispensed  with, 
although  a  disclaimer  of  intent  of  indignity  to  its  flag  was  to  be 
expected  by  the  United  States.^  Mr.  Williams,  Attorney-General, 
in  an  opinion  of  December  19,  1873,  found  that  the  vessel  had  no 
right  to  carry  the  American  flag,  by  reason  of  her  unlawful  registry 
in  the  United  States.  He  was  of  opinion,  however,  that  the  fact 
that  she  had  violated  the  municipal  laws  of  the  United  States  did 
not  in  itself  give  to  Spain  the  right  to  capture  the  Virginius  on 
the  high  seas.^  On  the  other  hand.  President  Woolsey  of  Yale 
took  what  Mr.  Dana  regarded  as  "  an  unassailable  position  ", 
that  ownership  of  the  Virginius  by  Spanish  subjects  gave  to  Spain 
"  jurisdiction  "  over  the  vessel.^ 

It  is  believed  that  justification  for  the  seizure  of  the  Virginius 
was  not  to  be  determined  by  reference  to  the  right  of  the  ship  to 
fly  the  flag  under  which  she  sailed.  The  nationality  of  a  vessel 
is  not  always  decisive  of  the  legality  of  measures  to  be  directed 
against  her.  On  grounds  of  self-defense  an  aggrieved  State  may 
subject  a  foreign  ship  to  restraint  on  the  high  seas  and  in  times  of 
peace,  if  the  conduct  of  those  controlling  the  vessel  is  such  as  to 
render  the  seizure  of  her  the  necessary  mode  of  warding  off  threat- 
ened and  instant  danger.  Circumstances  may  in  fact  rarely 
combine  to  warrant  such  preventive  action.  In  the  case  of  the 
Virginius  they  appear  to  have  been  such  as  to  impose  no  duty  on 
the  Spanish  authorities  to  refrain  from  seizing  the  vessel  until 
she  entered  Cuban  waters. 

When  a  foreign  vessel,  after  having  violated  the  municipal 
laws  of  a  State  within  the  territorial  waters  thereof,  puts  to  sea 
to  avoid  detention,  conditions  justifying  capture  on  the  high  seas 
on  grounds  of  self-defense  are  rarely  present.  The  prior  miscon- 
duct of  the  ship  does  not  necessarily  indicate  present  danger  of 
a  repetition  of  similar  wrongful  conduct.  The  purpose  of  those 
controlling  the  vessel  is  usually  to  enable  her  to  escape,  rather  than 

1  H.  Ex.  Doc.  43  Cong.,  1  Sess.,  81,  Moore,  Dig.,  II,  896. 

2  14  Ops.  Attys.-Gen.,  340,  Moore,  Dig.,  II,  898. 

'  R.  H.  Dana,  Jr.,  in  communication  to  a  Bo.ston  journal,  Jan.  6,  1874,  cited 
by  Woolsey,  6  ed.,  366.  See,  also,  Scott's  Cases,  320-322,  note,  in  which  Dr. 
Scott  observes:  "The  Virginius  was  rightly  captured  by  the  Spanish  au- 
thorities, provided  it  was,  and  such  was  the  fact,  in  the  employ  of  the  Cuban 
insurgents.  The  jurisdiction  is,  therefore,  twofold :  piracy  and  self-defense, 
which  latter,  if  it  exists  at  all,  exists  as  well  on  sea  as  on  land." 

115 


§  68]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

to  cause  her  to  resume  locally  offensive  activities.  The  object, 
moreover,  of  pursuit  and  seizure  is  primarily  to  inflict  a  penalty 
rather  than  to  prevent  the  recurrence  of  wrong-doing.  Unless 
the  vessel,  at  the  time  of  capture,  threatens  to  violate  anew  the 
rights  of  the  offended  State  within  its  own  waters,  and  unless 
the  State  to  which  the  vessel  belongs  is  then  powerless  to  check 
further  her  hostile  progress,  requiring  immediate  restraint  as  a 
necessary  deterrent,  there  are  lacking  the  elements  necessary  to 
excuse  interference  with  the  further  movements  of  the  ship  on 
grounds  of  self-defense.  If  there  be  any  generally  acknowledged 
right  of  pursuit  and  capture  on  the  high  seas  of  foreign  vessels 
which  have  violated  municipal  laws  within  territorial  waters,  its 
basis  must  be  sought  elsewhere.^ 

6 
INTERVENTION 

a 

§  69.    In  General. 

In  a  broad  sense  any  form  of  external  interference  with  the 
exercise  by  a  State  of  its  normal  rights  of  any  kind,  whether  per- 
taining to  the  control  of  territory  or  ships  at  sea,  or  to  the  enjoy- 
ment of  political  independence,  may  be  deemed  to  constitute 
intervention.  The  various  forms  of  interference  are,  however, 
so  diverse  in  kind,  and  vary  so  greatly  in  the  relative  frequency 
with  which  in  practice  they  recur,  as  to  demand,  for  sake  of  clear- 
ness of  thought,  distinct  and  appropriate  appellations.^ 

1  Rights  of  Jurisdiction  on  the  High  Seas,  infra,  §  236. 

Denying  the  existence  of  the  right  of  pursuit  and  capture,  see  Award  of 
Mr.  T.  M.  C.  Asser  in  the  cases  of  the  capture  by  Russia  of  the  American 
whahng  vessels,  James  Hamilton  Lems,  and  the  C.  H.  White,  under  convention 
between  the  United  States  and  Russia,  Aug.  26/Sept.  8,  1900.  Malloy's 
Treaties,  II,  1532-15.34,  Rev.  Droit  Int.,  2  ser.,  V,  83,  QO.  See,  also,  The  Itata, 
United  States  and  Chilean  Claims  Commission,  under  convention  of  Aug.  7, 
1872,  Moore,  Arbitrations,  III,  3067-3071;  Dana's  Wheaton,  Dana's  Note 
No.  108.  But  contra,  Marshall,  C.  J.,  in  Church  v.  Hubbart,  2  Cranch,  187, 
234 ;  Mr.  E.  J.  Phelps,  Oral  Argument  in  behalf  of  the  United  States,  Fur  Seal 
Arbitration,  Proceedings,  XV,  128-131.  Cf.  Rose  v.  Himelv,  4  Cranch,  241; 
Hudson  V.  Guestier,  4  Cranch,  293  :  s.c,  6  Cranch,  281 ;  The  Apollon,  9  Wheat. 
362.  See,  also,  Sir  Charles  Russell,  Oral  Argument  in  behalf  of  Great  Britain, 
Fur  Seal  Arbitration,  Proceedings.  XIII,  298-302;  Westlake,  2  ed.,  I,  177-178; 
Art.  VIII  of  rules  adopted  bv  the  Institute  of  International  Law,  at  Paris, 
Mar.  31,  1894,  Annuaire,  XIII,  328,  .330,  J.  B.  Scott,  Resolutions,  113,  115. 

2  See,  generally,  Bonfils-Fauchille,  7  ed.,  §§29.5-323  (with  bibliography); 
Calvo,  5  ed.,  I,  266-355;  Arrigo  Cavaglieri,  L'Intervento,  Bologna,  1913; 
Dana's  Wheaton,  §§  63-72;  A.  de  Floeckher,  De  V I ntervention,  Paris,  1896; 
Hall,  Higgins'  7  ed.,  §§88-95;  Hershey,  §§136-145;  Henry  G.  Hodges, 
The  Doctrine  of  Intervention,   Princeton,   1915   (with  bibliography  in  Ap- 

116 


IN  GENERAL  [§   69 

The  term  intervention  is,  therefore,  here  given  a  somewhat 
narrow  and  technical  signification.  It  is  not  emploj'ed  to  refer 
to  those  cases  where,  for  example,  territory  is  temporarily  invaded 
on  grounds  of  self-defense,  or  for  the  protection  of  nationals 
resident  therein,  and  with  no  fm^ther  object  or  result.  There  are 
also  eliminated  the  numerous  instances  of  essentially  non-political 
interference  in  which  a  State  interposes  in  behalf  of  nationals 
deemed  to  have  been  denied  justice  at  the  hands  of  another,  and 
merely  seeks  to  obtain  compensatory  damages  in  their  behalf.^ 
Nor  is  there  included  the  demand  for  redress  of  a  public  wrong 
where  the  form  of  reparation  involves  no  impairment  of  political 
independence  or  sacrifice  of  territory  in  opposition  to  the  will  of 
the  sovereign. 

The  term  intervention  is  here  used  to  describe  simply  the  in- 
terference by  a  State  in  the  domestic  or  foreign  affairs  of  another 
in  opposition  to  its  will  and  serving  by  design  or  implication  to 
impair  its  political  independence."     Such  action  may  or  may  not 

pendix  III;  Lawrence,  115-135;  Charles  de  Morillon,  Du  Principe  d'lnter- 
ventinn,  Dijon,  1904;  Oppenheim.  2  ed.,  I,  §§  134-140,  with  bibliography; 
Phillimore,  3  ed.,  1,  553-038;  Pradier-Fodere,  I,  546-678;  Rivier,  I.  389-407; 
A.  G.  Stapleton,  Intervention  and  Non-intervention,  or  The  Foreign  PoHca 
of  Great  Britain  from  1790-1865,  London,  1S66;  Westlake,  2  ed.,  I,  317-321; 
Woolsey,  6  ed.,  43-52.  Also,  especially,  see  Moore,  Dig.,  VI,  1-247,  and  docu- 
ments there  cited;  Memorandum  by  J.  R.  Clark,  Jr.,  Solicitor,  Dept.  of  State, 
on  Right  to  Protect  Citizen.s  in  Foreign  Countries  by  Landing  Forces,  Dept. 
of  State,  Division  of  Information,  Series  M,  No.  14,  1912,  1-22. 

1  "The  difference  between  intervention  and  interposition  is  most  clearly 
drawn  in  the  principles  which  have  governed  and  the  practice  which  has  been 
followed  by  this  country  [the  United  States],  for  while  it  has  been  the  studied 
policy  most  rigidly  adhered  to  (with  one  or  two  isolated  exceptions  —  for  ex- 
ample, our  political  intervention  in  Cuba  and  perhaps  Samoa)  to  refrain  from 
interfering  in  the  purely  political  affairs  of  other  countries  (but  see  Monroe 
Doctrine),  no  nation,  it  would  seem,  has  with  more  frequency  than  this  Govern- 
ment used  its  military  forces  for  the  purpose  of  occupying  temporarily  parts 
of  foreign  countries  in  order  to  secure  adequate  safety  and  protection  for  its 
citizens  and  their  property. 

"The  United  States  has,  either  alone  or  jointly  with  other  powers,  many 
times  interposed  for  the  protection  of  American  interests  and  American 
property,  an  action  classified  by  Mr.  Moore  as  non-political  intervention  in 
the  affairs  of  foreign  countries.  While  this  action  has  at  times  resulted  in  a 
real  interference  in  the  political  affairs  of  a  foreign  country,  either  with  or 
without  the  request  of  a  foreign  government,  at  other  times  the  interference 
in  political  affairs  has  been  merely  incidental  —  indeed,  accidental  —  and  not 
the  main  purpose  of  the  action  taken."  Memorandum  by  J.  R.  Clark, 
Solicitor  of  Dept.  of  State,  on  Right  to  Protect  Citizens  in  Foreign  Countries 
by  Landing  Forces,  Dept.  of  State,  Division  of  Information,  Oct.  12,  1912, 
p.  30. 

2  Intervention  takes  place,  declares  Hall :  "When  a  State  interferes  in  the 
relations  of  two  other  States  without  the  consent  of  both  or  either  of  them,  or 
when  it  interferes  in  the  domestic  affairs  of  another  State  irrespective  of  the 
will  of  the  latter  for  the  purpose  of  either  maintaining  or  altering  the  actual 
condition  of  things  within  it."  Higgins'  7  ed.,  §  88.  The  same  writer  adds  : 
"The  right  of  independence  is  so  fundamental  a  part  of  international  law,  and 

117 


§  69]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

be  lawful.  The  gravity  of  what  takes  place  whenever  an  act  of 
intervention  is  committed  is,  however,  such  as  to  require,  by  way 
of  justification,  the  presence  of  unusual  if  not  extraordinary  cir- 
cumstances. Moreover,  the  legal  value  of  these  for  such  purpose 
is  not  to  be  derived  from  the  power  of  the  intervening  State,  but 
rather  from  the  sinister  and  lawless  conduct  of  that  other  whose 
freedom  of  will  is  opposed. 

Unless  a  State  is  guilty  of,  or  threatens  to  be  guilty  of  wrongful 
conduct  towards  the  outside  world,  whether  directed  generally 
against  the  family  of  nations,  or  in  opposition  to  one  of  its  members, 
there  seems  to  be  no  just  ground  for  interference.^  It  is  the  ab- 
sence of  internationally  illegal  conduct  which  in  such  case  removes 
the  possibility  of  lawful  intervention.^  Whether  conduct  is  to  be 
deemed  internationally  illegal  must  be  ascertained  by  reference 
to  the  requirements  of  the  system  of  the  law  designed  to  promote 
international  justice.  Those  requirements  doubtless  vary  from 
time  to  time,  not  in  principle,  but  in  their  application  to  the  acts 
of  the  individual  State.  At  the  present  day  there  is  evidence 
of  an  increasing  disposition,  on  the  one  hand,  to  assure  respect 
for  acknowledged  rights  of  political  independence  of  each  member 
of  the  family  of  nations,  and  on  the  other,  to  facilitate  united 
efforts  to  intervene  when  a  particular  State  definitely  abuses  those 
rights.  It  is  the  mode  of  collective  interference,  through  an  es- 
tablished agency,  as  well  as  the  recognition  of  circumstances  when 
such  action  is  excusable,  which  characterize  the  existing  tendency 
and  afford  hope  of  the  development  of  a  sounder  practice  than 
has  hitherto  prevailed.^ 

respect  for  it  is  so  essential  to  the  existence  of  legal  restraint,  that  any  action 
tending  to  place  it  in  a  subordinate  position  must  be  looked  upon  with  dis- 
favour, and  any  general  grounds  of  intervention  pretending  to  be  sufficient, 
no  less  than  their  application  in  particular  cases,  may  properly  be  judged 
with  an  adverse  bias."    Higgins'  7  ed.,  §  89. 

The  term  intervention  is  not  employed  in  the  text  to  describe  the  inter- 
ference or  interposition  by  an  independent  State  in  the  affairs  of  another,  which 
by  treaty  or  otherwise  is  dependent  upon  the  former  as  a  protector.  Where 
such  a  relationship  exists,  interference  does  not,  on  account  of  the  status  of 
the  ward,  interfere  with  any  riht  of  independence. 

Cf.  Relationships  Established  between  the  United  States  and  Certain  Neigh- 
boring States,  supra,  §§19-24. 

1  Hall,  Higgins'   7  ed.,  §§  90  and  92. 

*  It  should  be  observed  that  the  wrong  with  which  a  State  may  be  charge- 
able may  be  attributable  to  its  impotence  1 1  maintain  its  supremacy  in  fact 
over  its  own  domain  or  its  own  property,  and  thereby  permit  their  use  in  such 
a  way  by  a  foreign  power  as  to  cause  injury  to  a  third  State. 

*  See,  for  example.  Art.  XII  of  the  treaty  between  the  Allied  and  Associated 
Powers,  on  the  one  hand,  and  Poland,  on  the  other,  concluded  June  28,  1919, 
making  certain  stipulations  a  matter  of  international  concern  and  placing 
them  under  the  guarantee  of  the  League  of  Nations.  British  Treaty  Series 
No.  8,  1919  [Cmd.  223]. 

118 


SELF-DEFENSE  [§  71 

b 

§  70.    Self-Defense. 

It  is  subversive  of  justice  among  nations  that  any  State  should, 
in  the  exercise  of  its  own  freedom  of  action,  directly  endanger  the 
peace  and  safety  of  any  other  which  has  done  no  WTong.  Upon 
such  an  occurrence  the  State  which  is  menaced  is  free  to  act.  For 
the  moment,  it  is  justified  in  disregarding  the  political  independ- 
ence of  the  aggressor  and  in  so  doing  may  be  guided  by  the  re- 
quirements of  its  own  defense.^  This  freedom  of  action  is  due  not 
merely  to  the  circumstance  that  the  continuance  of  the  life  of 
the  State  demands  extraordinary  measures,  but  rather  to  the  fact 
that  its  safety  is  jeopardized  by  the  essentially  wrongful  conduct 
of  another.^  It  is  not,  therefore,  the  broad  ground  of  self-preser- 
vation, but  the  narrower  yet  firmer  basis  of  one  form  of  self-preser- 
vation, that  of  self-defense,  on  which  justification  rests. 

The  nature  of  the  conduct  which  menaces  the  safety  of  a  foreign 
State  is  perhaps  unimportant  in  determining  the  right  of  the  latter 
to  have  recourse  to  intervention.  It  has  been  already  observed, 
however,  that  an  aggrieved  State,  although  compelled  on  grounds 
of  self-defense  to  resort  to  extraordinary  measures,  involving  even 
the  despatch  of  armed  forces  to  foreign  territory,  may  neither 
design  nor  effect  interference  with  the  political  independence  of 
the  sovereign  thereof,  and  may  not  in  fact  intervene.^  It  suffices 
to  note  that  if  interference  constituting  intervention  is  reasonably 
deemed  to  be  required  for  the  defense  of  the  State  whose  safety 
is  menaced,  such  action  is  not  unlawful,  and  may  be  anticipated.^ 


§71.   Prevention    of    Unlawful    Intervention   by   Another 
State. 
To  prevent  the  illegal  interference  by  one  State  with  the  polit- 
ical independence  of  another,  a  third  State  may  doubtless  on  prin- 
ciple lawfully  intervene,  even  though  its  owti  safety  is  not  endan- 

1  Intervention  to  preserve  rights  of  succession,  as  Professor  Moore  declares, 
''has  never  been  exempUfied  in  America."  Dig.,  VI,  2.  For  that  reason  it 
is  not  discussed.  That  it  lacks  justification  in  law,  is  the  opinion  of  Hall, 
who  points  out  that:  "International  Law  no  longer  recognises  a  patri- 
monial State.  A  country  is  not  identified  with  its  sovereign.  He  is  merely 
its  organ  for  certain  purposes,  and  it  has  no  right  to  interfere  for  an  object 
which  is  personal  to  him."     Higgins'  7  ed.,  §  91. 

2  Westlake,  2  ed.,  I,  309-312. 

3  Cf.  The  Pursuit  of  Villa,  su-pra,  §  67. 

^  States  have  not  hesitated  to  act  upon  this  principle.  It  has  been  invoked 
by  the  United  States. 

119 


§  71]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

gered  by  the  action  to  which  it  is  opposed.  Justification  rests 
upon  the  fact  that  any  member  of  the  family  of  nations  is 
authorized  to  oppose  so  grave  a  violation  of  international  law  as 
the  unwarranted  interference  with  the  political  independence  of 
one  of  their  number.^ 

When  the  third  State  intervenes  under  a  treaty  guaranteeing 
protection  to  another  against  foreign  interference  with  its  terri- 
torial integrity  or  political  independence,  the  situation  is  the  same. 
The  treaty  merely  imposes  a  legal  duty  on  the  guarantor  to  take 
certain  action,  which,  in  the  absence  of  agreement,  might  also 
be  not  unlawfully  taken.  The  intervention  is  in  such  case  justified 
not  by  reason  of  the  treaty,  but  on  account  of  the  illegal  char- 
acter of  the  conduct  which  it  is  sought  to  check.^ 


Domestic  Affairs 

(1) 

§  72.   Harsh  Treatment  of  Nationals. 

The  nature  and  extent  of  the  right  of  a  State  to  treat  as  it  may 
see  fit  its  own  nationals  within  places  subject  to  its  control  has  been 
observed.^  It  has  been  seen,  moreover,  that  certain  forms  or 
degrees  of  harsh  treatment  are  deemed  to  attain  an  international 
significance  because  of  their  direct  and  adverse  effect  upon  the 
rights  and  interests  of  the  outside  world.  For  that  reason  it  would 
be  unscientific  to  declare  at  this  day  that  tyrannical  conduct,  or 
massacres,  or  religious  persecutions  are  wholly  unrelated  to  the 
foreign  relations  of  the  territorial  sovereign  which  is  guilty  of 

^  The  successful,  though  tardy  effort  of  the  United  States  to  check  the 
French  intervention  in  Mexico,  1862-1867,  was  an  application  of  this  prin- 
ciple. Mr.  Seward  justified  the  opposition  of  his  government  on  the  ground 
that  the  wrongful  treatment  of  Mexico  "could  not  but  be  regarded  by  the 
people  of  the  United  States  as  injurious  and  menacing  to  their  own  chosen 
and  endeared  republican  institutions."  Mr.  Seward,  Secv.  of  State,  to  the 
French  Minister,  Dec.  6,  1865,  H.  Ex.  Doc.  73,  39  Cong.,  1  Sess.,  II,  347, 
Moore,  Uig.,  V"I,  501.  Compare  interference  of  Great  Britain  in  Portugal 
in  1826,  to  thwart  Spanish  aid  of  Don  Miguel,  the  pretender  to  the  Portuguese 
crown.     Cf.  Dana's  Wheaton,  §  68. 

^  A  treaty  purporting  to  bind  the  parties  to  assist  each  other  in  case  of  any 
external  aggression  may  embrace  an  undertaking  to  come  to  the  aid  of  a  ruth- 
less intervening  State  even  in  case  of  just  resistance  against  its  operations. 
Such  an  alliance  in  so  far  as  it  is  designed  to  strengthen  a  wrong-doer  in  its 
opposition  to  measures  lawfully  directed  against  it,  is  detrimental  to  the  wel- 
fare of  the  family  of  nations  because  necessarily  at  variance  with  the  prin- 
ciples of  international  justice. 

^  Treatment  of  Nationals,  supra,  §  55. 

120 


REVOLUTION  [§73 

them.^  If  it  can  be  sho^Ti  (and  doubtless  it  oftentimes  may  be) 
that  such  acts  are  immediatel\'  injurious  to  the  nationals  of  a  par- 
ticular foreign  State  grounds  for  interference  by  it  might  be  ac- 
knowledged. Again,  the  society  of  nations,  acting  collectively, 
might  not  unreasonably  maintain  that  a  State  yielding  to  such 
excesses  was  rendering  itself  unfit  to  perform  its  international 
obligations,  and  possibly  also  thereby  inviting  war. 

It  seems  important  to  observe  that  since  the  outbreak  of  The 
World  War  there  has  developed  a  fresh  international  interest 
in  the  normally  domestic  affairs  of  the  individual  State,  and  a 
disposition  on  the  part  of  certain  European  statesmen  to  curb  by 
united  action  such  abuses  as  appear  directly  to  be  a  menace  to 
the  general  peace.^ 

(2) 
§  73.   Revolution. 

A  revolution  or  a  civil  war  within  the  domain  of  a  particular 
State  may  be  a  source  of  grave  concern  to  a  neighboring  power. 
Its  commerce  may  be  adversely  affected  ;  its  burden  of  abstaining 
from  participation  may  be  heavy;  its  obligations  as  a  neutral 
(in  case  the  insurgents  are  recognized  as  belligerents)  may  prove 
to  be  exacting  and  onerous.  Nevertheless,  the  fight  for  the  reins 
of  government  is  not  in  itself  internationally  WTongful.  Until 
the  conduct  of  hostilities,  by  reason  of  the  mode  or  place  of  opera- 
tions, or  through  some  other  circumstance,  menaces  the  safety 
of  the  outside  State,  or  otherwise  directly  interferes  wdth  the  exer- 
cise by  it  of  some  definite  right  which  should  be  respected,  no  ground 
for  intervention  is  apparent.  Prior,  therefore,  to  such  a  time, 
intervention  to  assist  in  suppressing  or  aiding  the  revolution  must, 
on  principle,  lack  justification.^ 

1  Cf.  Hall,  Higgins'  7  ed.,  p.  288.  According  to  the  preamble  of  the  treaty 
of  July  6,  1827,  concluded  by  Great  Britain,  France  and  Russia  with  reference 
to  the  intervention  of  those  powers  in  the  struggle  of  the  Greeks  for  inde- 
pendence, sentiments  of  humanitj^,  the  tranquillitj-  of  Europe,  a  condition 
of  anarchy  causing  impediments  to  foreign  commerce,  and  giving  opportunity 
for  acts  of  piracj',  and  also  compliance  with  the  invitation  of  the  Greeks,  were 
referred  to  in  justification  of  the  stand  to  be  taken.  Noiiv.  Rec,  VII,  282- 
283.  See,  also,  Dana's  Wheaton,  §G9;  Abdy's  Kent  (1878),  50,  quoted  in 
Moore,  Dig.,  VI,  4-5. 

"As  an  example  of  intervention  to  put  an  end  to  abhorrent  conditions,  the 
case  of  Bulgaria  in  1876  may  be  taken."  Moore,  Dig.,  VI,  3,  note.  See,  also, 
Final  Act  of  the  Congress  of  Berlin,  July  13,  187S.  Nouv.  Rec.  Gen.,  2  ser., 
Ill,  449. 

Cf.  Mr.  Wilson,  Acting  Secy,  of  State,  to  IMr.  W.  S.  Bennett,  June  28,  1909, 
relative  to  the  massacre  of  Armenians  in  Asia  Minor,  For.  Rel.  1909,  557. 

2  In  this  connection  see  Art.  XI  of  the  Covenant  of  the  League  of  Nations. 

3  Pradier-Fodere,  I,  378;  Bonfils-Fauchille  7  ed.,  §§310-312.  See  docu- 
ments in  Moore,  Dig.,  VI,  6-10,  showing  the  attitude  of  the  United  States 

121 


§  73]  RIGHTS   OF   POLITICAL   INDEPENDENUa 

Nor  is  the  situation  legally  altered  by  reason  of  the  fact  that 
intervention  occurs  in  pursuance  of  a  treaty  of  guaranty,  or  that 
such  action  is  in  response  to  an  invitation  from  either  party  to 
the  conflict.^  Foreign  interference,  howsoever  invoked,  is  ne- 
cessarily directed  against  a  portion  of  the  population  of  a  foreign 
State,  and  is  thus  a  denial  of  its  right  to  engage  in  or  suppress  a 
revolution,  or  of  employing  its  own  resources  to  retain  or  acquire 
control  over  the  government  of  its  own  country .- 

It  must  be  acknowledged  that  the  normal  obligation  of  outside 
States  not  to  intervene  may  be  regarded  as  inapplicable  by  those 
in  close  proximity  to  the  area  of  hostilities,  especially  if  the  con- 
flict be  prolonged  and  ruthlessly  waged  with  contempt  for  the 
dictates  of  humanity.  In  such  case,  however,  it  is  not  the  bare 
fact  of  revolution,  but  rather  its  causal  connection  with  the  im- 
pairment of  definite  rights  possessed  by  the  aggrieved  States, 
which  must  be  relied  upon  to  excuse  interference.  Unfortunately 
there  has  been  a  tendency  to  imply  such  a  consequence  when  the 
interests  rather  than  the  legal  rights  of  foreign  States  have  suffered 
from  the  prolongation  of  the  conflict.  Nor  has  there  been  alert- 
ness to  distinguish  between  the  two,  or  to  respect  the  distinction 
when  the  reason  for  it  was  obvious. 


§  74.   Intervention  by  a  Body  of  States. 

On  principle,  a  group  of  States  acting  in  concert  has  no  broader 
right  of  intervention  than  that  possessed  by  a  single  State.     Clean 

respecting  the  possible  intervention  of  certain  European  powers  during  the 
War  of  the  Rebellion,  particularly  Circular  of  Mr.  Seward,  Secv.  of  State, 
March  9,  1863,  Dip.  Cor.  1863,  II,  812-814;  Communication  of  Air.  Seward, 
Secy,  of  State,  to  Mr.  Dayton,  Minister  to  France,  No.  278,  Dec.  29,  1862,  Dip. 
Cor.  1863,  I,  639,  640-641.  For  an  illuminating  commentary  on  the  attitude 
of  the  British  Government  with  respect  to  the  Confederacy,  see  The  Educa- 
tion of  Henry  Adams,  by  himself,  Boston,  1918,  Chap.  X. 

1  But  see  case  of  Belgium,  1830,  set  forth  in  Wheaton,  Hist.  Law  of  Nations, 
Part  4,  sec.  26.  Cf.  earlier  "Instances  of  interference  for  or  against  revolu- 
tions", in  Woolsey,  6  ed.,  49-53.  The  intervention  of  Great  Britain,  France 
and  Russia  in  the  Greek  insurrection  against  Turkey  in  1827  was  in  compli- 
ance with  the  request  of  the  Greeks.  Cf.  Treaty  oil  July  6,  1827,  concluded 
by  France,  Great  Britain  and  Russia.     Nouv.  Rec,  VH,  282-283. 

2  Declares  Lawrence:  "Any  intervention  in  an  internal  struggle  is  an 
attempt  to  prevent  the  people  of  a  State  from  settling  their  own  affairs  in 
their  own  way,  and,  as  such,  a  gross  violation  of  national  independence.  The 
request  of  one  of  the  parties  cannot  alter  the  quality  of  the  act,  and  render 
legal  that  which  without  it  would  be  contrary  to  the  fundamental  principles 
of  the  law.  It  makes  no  difference  whether  the  invitation  comes  from  the 
established  authorities  or  from  rebels.  In  neither  case  can  an  incitement  to 
do  wrong  render  the  act  done  in  consequence  of  it  lawful  and  right."  Int. 
Law,  3  ed.,  126.     Cf.  6  ed.  of  same  work,  134-135. 

122 


CHRONIC  INTERNATIONAL  DELINQUENCY  [§  75 

motives  may  inspire  their  action.  Their  very  power  may  silence 
protests  and  insure  the  success  of  their  operations.  Unless,  how- 
ever, such  a  group  is  fairly  representative  of  the  entire  family  of 
nations,  so  as  to  be  capable  of  establishing  rules  of  conduct  to  be 
observed  by  each  of  its  members,  it  cannot  create  new  grounds 
to  justify  interference  with  the  political  independence  of  a  sovereign 
State.^ 

f 

§  75.    Chronic  Disregard  of  International  Obligations. 

A  State  through  neglect,  or  design,  may  continuously  and  in- 
creasingly fail  to  respond  to  its  several  international  obligations. 
It  may  cease  to  be  capable  of  maintaining  adequate  government 
within  its  territory ;  it  may  be  persistently  guilty  of  tortious  con- 
duct for  which  no  means  of  redress  through  any  channels  are  a\ail- 
able ;  it  may  flout  its  fiscal  or  other  contractual  undertakings  and 
invite  national  bankruptcy.  In  a  word,  it  may  relapse  into  a 
condition  of  chronic  impotence  to  perform  the  common  duties 
of  a  member  of  the  family  of  nations.  Under  such  circumstances 
the  State  forfeits  the  right  to  complain  if  a  foreign  power  or  group 
of  powers  which  have  suffered  direct  injury  from  its  misconduct 
resort  to  intervention.^  Nor  is  their  freedom  of  action  necessarily 
limited  by  the  nature  of  the  \\Tongs  which  they  have  sustained. 
These  may  arise  from  tort  or  contract,  and  they  may  or  may  not 

^  Declares  Hall :  "There  is  fair  reason  consequently  for  hoping  that  inter- 
vention by,  or  under  the  sanction  of,  the  body  of  States  on  grounds  forbidden 
to  single  States,  may  be  useful  and  even  beneficent.  Still,  from  the  point 
of  view  of  law,  it  is  always  to  be  remembered  that  States  so  intervening  are 
going  beyond  their  legal  powers.  Their  excuse  or  their  justification  can  only 
be  a  moral  one."  Higgins'  7  ed.,  §94.  In  his  article  entitled  "La  question 
dVrient  en  1885",  Rev.  Droit  Int.,  1  ser.,  XVIII,  591,  603,  Mr.  RoHn- 
Jacquemyns  declares  that  there  is  "collective  authority  historically  and  judi- 
cially established  by  the  Great  Powers  of  Europe  over  affairs  of  the  Turkish 
Empire."  In  1897  the  Great  Powers  intervened  in  affairs  in  Crete.  Streit, 
"La  question  cretoise",  in  Rev.  Gen.,  I,  IV,  VI,  VII  and  X;  E.  Nys,  "Le  con- 
cert eiiropeen  et  la  notion  du  droit  international",  Rev.  Droit  Int.,  2  ser.,  I,  273. 

Concerning  the  action  of  the  Powers  in  causing  Montenegro  to  evacuate 
Scutari  in  1913,  cf.  Bonfils-Fauchille,  7  ed.,  §  301. 

Concerning  the  pressure  exerted  by  Russia,  Germany  and  France  to  cause 
Japan  to  relinquish  the  cession  to  it  of  the  Liao-tung  Peninsula,  including 
Port  Arthur,  and  vielded  bv  China  in  the  treatv  of  Shimonoseki  of  April, 
1895,  see  Hall,  Higgins'  7  ed.,  §  95. 

The  provisions  of  the  treaty  of  peace  wath  Germany  of  June  28,  1919,  con- 
templating the  renunciation  by  Germany  of  its  several  rights,  titles  and 
privileges  in  the  Province  of  Shantung  [Arts.  156-158]  manifested  intervention 
by  the  group  of  Powers  responsible  for  the  terms  of  the  treaty  as  against  China, 
the  territorial  sovereign  whose  opposition  as  such  was  unavailing. 

-  President  Roosevelt,  Annual  Message,  Dec.  6,  1904,  For.  Rel.  1904,  xli, 
Moore,  Dig.,  VI,  596.     Also  Westlake,  2  ed.,  I,  318,  319-320. 

123 


§  75]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

involve  moral  turpitude.^  It  is  the  condition  into  which  the  State 
has  relapsed  and  from  which  no  means  of  recovery  is  otherwise 
apparent  which  is  believed  to  sustain  the  right  to  interfere. 

An  aggrieved  State  may  in  fact  resort  to  various  measures 
short  of  intervention  to  cause  the  abatement  of  even  chronic 
conditions  of  disorder  within  the  territory  of  a  neighbor.  There 
may  be  vigorous  diplomatic  interposition.  Even  force  may 
be  temporarily  employed  without,  however,  any  actual  inter- 
ference with  the  political  independence  of  the  State  against  which 
it  is  directed.^  Such  methods  may  not,  however,  suffice  ;  and  when 
they  do  not,  intervention  is  to  be  anticipated.  As  a  result,  the 
delinquent  State  is  likely  to  be  placed  for  the  time  being  under 
the  protection  of  that  which  it  has  wronged  or  of  some  other 
foreign  power,  thereby  losing  during  the  period  of  protection  the 
condition  and  privileges  of  independence. 

g 
The  Conduct  of  the  United  States 

(1) 
§  76.   The  PoHcy  of  Non-intervention. 

In  so  far  as  the  United  States  observed  a  policy  of  non-interven- 
tion with  respect  to  the  affairs  of  European  States,  its  conduct 
was  attributable  in  large  degree  to  respect  for  the  views  of  Presi- 
dent Washington  as  expressed  in  his  farewell  address  of  September, 
1796.     He  there  said  in  part : 

Europe  has  a  set  of  primary  interests  which  to  us  have  none 
or  a  very  remote  relation.  Hence,  she  must  be  engaged  in 
frequent  controversies,  the  causes  of  which  are  essentially 
foreign  to  our  concerns.  Hence,  therefore,  it  must  be  unwise 
in  us  to  implicate  ourselves  by  artificial  ties  in  the  ordinary 
vicissitudes  of  her  politics,  or  the  ordinary  combinations  and 
collisions  of  her  friendships  or  enmities.  Our  detached  and 
distant  situation  invites  and  enables  us  to  pursue  a  different 
course.^ 

1  See,  in  this  connection,  the  Hague  Convention  of  1907,  Respecting  the 
Limitation  of  the  Employment  of  Force  for  the  Recovery  of  Contract  Debts, 
Malloy's  Treaties,  II,  2248;  also  infra,  §  309,  and  The  Monroe  Doctrine, 
infra,  §  95. 

^  Cf.  The  Pursuit  of  Villa,  supra,  §67;  The  Landing  of  Foreign  Forces, 
infra,  §  202 ;  Retorsion,  i7ifra,  §  588. 

3  Writings  of  Washington,  by  Ford,  XIII,  277,  316,  Moore,  Dig.,  VI,  12. 
With  reference  to  the  conduct  thus  advised,  Mr.  Seward,  Secretary  of  State, 

124 


THE  POLICY  OF  NON-INTERVENTION  [§  76 

Throughout  the  nineteenth  century  and  well  into  the  twentieth, 
American  statesmen  responsible  for  the  foreign  relations  of  the 
United  States  were  reluctant  to  encourage  intervention  with  respect 
to  conduct  having  no  immediate  connection  with  the  affairs  of 
the  American  continents.  Nor  was  there  a  disposition  to  place 
the  United  States  in  such  a  relation  to  the  affairs  of  other  conti- 
nents as  to  increase  the  likelihood  of  its  being  called  upon  to  inter- 
vene for  the  preservation  of  its  rights  therein.^  Even  with  re- 
spect to  events  of  the  Western  hemisphere,  the  United  States 
evinced  generally  no  alertness  to  avail  itself  of  the  right  of  inter- 
vention whenever  circumstances  appeared  to  warrant  such  action.^ 

declared  in  the  course  of  a  despatch  to  Mr.  Riotte,  Minister  to  Costa  Rica, 
July  7,  1862 :  "It  may  well  be  said  that  Washington  did  not  enjoin  it  upon 
us  as  a  perpetual  pohcy.  On  the  contrary  he  inculcated  it  as  the  policy  to 
be  pursued  until  the  union  of  the  States,  which  is  only  another  form  of  ex- 
pressing the  idea  of  the  integrity  of  the  nation,  should  be  established,  its  re- 
sources should  be  developed  and  its  strength,  adequate  to  the  chances  of 
national  life,  should  be  matured  and  perfected."  MS.  Inst.  Am.  States,  XVI, 
225,  Moore,  Dig.,  VI,  18.  Again,  in  addressing  Mr.  Dayton,  Minister  to 
France,  May  11,  1863,  Mr.  Seward  declared:  "It  is  true  that  Washington 
thought  a  time  might  come  when,  our  institutions  being  firmly  consolidated 
and  working  with  complete  success,  we  might  safely  and  perhaps  beneficially 
take  part  in  the  consultations  held  by  foreign  States  for  the  common  advantage 
of  the  nations."     Dip.  Cor.,  1863,  I,  667,  668,  Moore,  Dig.,  VI,  22,  23. 

^  See  a  series  of  declarations  of  policy  respecting  non-intervention  expressed 
in  documents  in  Moore,  Dig.,  VI,  11-32.  See  attitude  of  President  Cleve- 
land respecting  the  position  taken  by  the  United  States  relative  to  the  General 
Act  of  the  Berlin  Conference  of  Feb.  26,  1885,  in  his  Annual  Message,  Dec.  8, 
1885,  For.  Rel.  1885,  viii-ix. 

Concerning  the  participation  by  the  United  States  in  the  Conference  at 
Algeoiras  in  1906,  dealing  with  Moroccan  affairs,  see  instruction  of  Mr.  Root, 
Secy,  of  State,  to  Ambassador  White  and  Minister  Gummer6,  For.  Rel.  1905, 
678.  In  advising  and  consenting  to  the  ratification  by  the  United  States  of 
the  General  Act  and  an  additional  protocol  of  the  Algeciras  Conference, 
signed  April  7,  1906,  the  Senate  resolved  that  as  a  part  of  the  act  of  rati- 
fication, it  understood  that  the  participation  of  the  United  States  in  the 
Conference  and  in  the  formation  and  adoption  of  the  General  Act  and  protocol 
was  for  the  sole  purpose  of  preserving  and  increasing  its  commerce  in  Morocco, 
the  protection  as  to  life,  liberty,  and  property  of  its  citizens  residing  or  travel- 
ing therein,  and  of  aiding  by  its  friendly  offices  and  efforts,  in  removing  friction 
and  controversy  which  seemed  to  menace  the  peace  between  powers  signatory 
with  the  United  States  to  the  treaty  of  1880,  all  of  which  were  on  terms  of 
amity  with  its  government;  "and  without  purpose  to  depart  from  the  tradi- 
tional American  foreign  policy  which  forbids  participation  by  the  United 
States  in  the  settlement  of  political  questions  which  are  entirely  European  in 
their  scope."     Malloy's  Treaties,  II,  2183. 

Cf.  reservation  under  which  the  American  plenipotentiaries  signed  the 
Hague  Convention  of  1899,  for  the  Pacific  Settlement  of  International  Dis- 
putes, Malloy's  Treaties,  II,  2032;  also  resolution  of  ratification  by  the 
Senate  of  the  Hague  Convention  of  1907,  for  the  Settlement  of  International 
Disputes,  id.,  II,  2247.  Also  J.  B.  Moore,  Principles  of  American  Diplomacy, 
New  York,  1918,  Chap.  VI,  "Non-intervention  and  the  Monroe  Doctrine." 

2  See,  for  example,  Senate  Resolution  of  April  20,  1911,  to  the  effect  that 
intervention  by  the  United  States  in  the  existing  revolution  in  Mexico  would 
be  without  justification.  Senate  Document  No.  25,  62  Cong.,  1  Sess.,  with 
brief  in  support  of  the  resolution. 

125 


§  77]  RIGHTS    OF   POLITICAL    INDEPENDENCE 

(2) 

§  77.    Departure  from  the  Policy  of  Non-intervention. 

Since  its  participation  as  a  belligerent  in  The  World  War,  both 
in  the  conduct  of  hostilities  and  in  the  formulation  of  terms  of 
peace/  the  United  States  appears  to  acknowledge  such  an  interest 
in  the  affairs  of  European  and  Asiatic  States  as  to  manifest  con- 
cern therein,  even  to  the  extent  of  intervention  should  there  be 
adequate  legal  excuse  for  such  action,  and  when,  in  its  judgment, 
failure  to  interfere  would  tend  to  establish  a  condition  of  things  at 
variance  with  the  requirements  of  international  justice.^  It  should 
be  observed  that  it  is  a  matter  of  American  policy  rather  than  of 
law  which  has  undergone  a  change.  That  change  seems  to  be 
due  to  a  widening  perception  of  the  fact  that  American  interests 
are  bound  up  with,  and  are,  to  a  certain  degree,  inseparable 
from  those  of  States  of  other  continents,  and  that,  therefore,  the 
commission  in  any  one  of  them  of  internationall,y  illegal  acts  pro- 
vocative of  war  may,  in  a  particular  case,  prove  to  be  as  highly 
detrimental  to  the  United  States  as  to  other  members  of 
the  family  of  nations.  It  is  not  acknowledged,  however,  that 
such  conduct  is  always  to  be  regarded  as  productive  of  such  an 
effect,  or  that  the  concern  of  the  United  States  may  not  be  de- 
pendent upon  the  geographical  relationship  of  the  place  where 
the  disturbance  occurs  to  American  territory,  or  upon  other 
considerations. 

(3) 

§  78.   Instances  of  Intervention. 

The  grounds  on  which  the  United  States  has  relied  in  justi- 
fication of  intervention  or  contemplated  intervention  are  to  be 
observed  by  reference  to  certain  cases  which  at  various  times 
prior  to  The  World  War  confronted  the  nation. 

^  See  correspondence  between  the  United  States  and  Germany  regarding 
an  armistice,  Oct.  6,  1918,  to  Nov.  5,  1918,  Am.  J.,  XIII,  Supp.,  85-96,  and 
especially  communication  of  Mr.  Lansing,  Secy,  of  State,  to  Mr.  Sulzer,  Swiss 
Minister  at  Washington,  Nov.  5,  1918,  indicating  the  willingness  of  the  Allied 
Governments,  subject  to  specified  qualifications,  to  make  peace  with  the 
Government  of  Germany  according  to  the  terms  laid  down  in  President 
Wilson's  address  to  Congress  of  January  8,  1918,  and  the  principles  enunciated 
in  his  subsequent  addresses.  Official  Bulletin,  Nov.  6,  1918,  Vol.  II, 
No.  456,  p.  1. 

2  Cf.,  for  example,  statement  by  President  Wilson,  April  23,  1919,  relative 
to  the  conflicting  claims  of  the  Italians  and  the  Jugoslavs  with  respect  to 
Fiume,  Current  Hist.  Magazine,  X,  June,  1919,  405. 

126 


REVOLUTION,  1895-1898  [§  81 

Cuba 

§  79.   Transfer  to  a  Third  State. 

While  Cuba  remained  under  the  dominion  of  Spain  it  was  fre- 
quently declared  that  the  United  States  would  regard  as  dangerous 
to  its  peace  and  safety,  and  hence  as  an  unfriendly  act,  the  cession 
of  that  island  to  a  third  State.  Such  a  transfer  the  United  States, 
for  that  reason,  asserted  the  right  to  oppose.^ 

§80.     Revolution,  1868-1878. 

During  the  Cuban  Revolution  of  1868-1878,  President  Grant 
declared  that  the  United  States  would  be  justified  in  intervening 
to  bring  hostilities  to  an  end,  on  account  of  the  disregard  of  the 
laws  of  civilized  warfare,  the  injury  to  commercial  interests  of  the 
United  States,  as  well  as  to  property  of  American  citizens  in  Cuba, 
and  by  reason  of  the  close  proximity  of  the  Island  to  the  United 
States.  He  added  that  the  interests  of  humanity  demanded  the 
cessation  of  hostilities  before  the  whole  island  should  be  laid  waste 
and  larger  sacrifices  of  life  be  made.  The  President  did  not,  how- 
ever, recommend  intervention.^ 

§  81.   Revolution,  1895-1898. 

President  McKinley  in  his  special  message  of  April  11,  1898, 
declared  that  intervention  by  the  United  States  in  the  existing 
Cuban  Insurrection  would  be  justified  for  the  following  reasons : 

1  Mr.  Adams,  Secy-  of  State,  to  Mr.  Nelson,  Minister  to  Spain,  April  28, 
1823,  H.  Ex.  Doc,  121,  31  Cong.,  1  Sess.,  6,  Moore,  Dig.,  VI,  380,  383;  Mr. 
Jefferson  to  President  Monroe,  Oct.  24,  1823,  S.  Ex.  Doc,  26,  57  Cong.,  1  Sess., 
Moore,  Dig.,  VI,  394,  395;  Mr.  Webster,  Secy,  of  State,  to  Mr.  Barringer, 
Nov.  26,  1851,  Webster's  Works,  513,  514,  Moore,  Dig.,  VI,  57;  Mr.  Seward. 
Secy,  of  State,  to  Mr.  Bancroft,  Minister  to  Prussia,  Oct.  28,  1867,  MS.  Inst. 
Prussia,  XIV,  486;  Speech  of  Senator  Calhoun  in  U.  S.  Senate,  May,  1848, 
Calhoun's  Works,  IV,  457  et  seq.,  Moore,  Dig.,  VI,  424,  426. 

Said  President  Grant  in  his  Annual  Message,  December  6,  1869 :  "  The 
United  States  has  no  disposition  to  interfere  with  the  existing  relations  of 
Spain  to  her  colonial  possessions  on  this  continent.  They  believe  that  in 
due  time  Spain  and  other  European  powers  will  find  their  interest  in  ter- 
minating those  relations  and  establishing  their  present  dependencies  as  inde- 
pendent powers  —  members  of  the  family  of  nations.  These  dependencies 
are  no  longer  regarded  as  subject  to  transfer  from  one  European  power  to 
another.  When  the  present  relation  of  colonies  ceases,  they  are  to  become 
independent  powers,  exercising  the  right  of  choice  and  of  self-control  in  the 
determination  of  their  future  condition  and  relations  with  other  powers." 
Richardson's  Messages,  VII,  31,  Moore,  Dig.,  VI,  61. 

The  Monroe  Doctrine,  infra,    §  90. 

2  President  Grant,  Annual  Message,  Dec.  7,  1875,  For.  Rel.  1875,  vi, 
Moore,  Dig.,  VI,  94-97.  Cf.,  also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Gushing, 
No.  266,  Nov.  5,  1875,  H.  Ex.  Doc.  90,  44  Cong.,  1  Sess.  3,  Moore,  Dig.,  VI. 
85,  87. 

127 


§81]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

First.  In  the  cause  of  humanity  and  to  put  an  end  to  the 
barbarities,  bloodshed,  starvation,  and  horrible  miseries  now 
existing  there,  and  which  the  parties  to  the  conflict  are  either 
unable  or  unwilling  to  stop  or  mitigate.  It  is  no  answer  to 
say  this  is  all  in  another  country,  belonging  to  another  nation, 
and  is  therefore  none  of  our  business.  It  is  specially  our  duty, 
for  it  is  right  at  our  door. 

Second.  We  owe  it  to  our  citizens  in  Cuba  to  afford  them 
that  protection  and  indemnity  for  life  and  property  which  no 
government  there  can  or  will  afford,  and  to  that  end  to  termi- 
nate the  conditions  that  deprive  them  of  legal  protection. 

Third.  The  right  to  intervene  may  be  justified  by  the  very 
serious  injury  to  commerce,  trade,  and  business  of  our  people, 
and  by  the  wanton  destruction  of  property  and  devastation 
of  the  island. 

Fourth,  and  which  is  of  the  utmost  importance.  The  present 
condition  of  affairs  in  Cuba  is  a  constant  menace  to  our  peace, 
and  entails  upon  this  government  an  enormous  expense.  With 
such  a  conflict  waged  for  years  in  an  island  so  near  us  and  with 
which  our  people  have  such  trade  and  business  relations ;  when 
the  lives  and  liberty  of  our  citizens  are  in  constant  danger  and 
their  property  destroyed  and  themselves  ruined ;  where  our 
trading  vessels  are  liable  to  seizure  and  are  seized  at  our  very 
door  by  war-ships  of  a  foreign  nation,  the  expeditions  of  filibus- 
tering that  we  are  powerless  to  prevent  altogether,  and  the 
irritating  questions  and  entanglements  thus  arising  —  all  these 
and  others  that  I  need  not  mention,  with  the  resulting  strained 
relations,  are  a  constant  menace  to  our  peace,  and  compel  us 
to  keep  on  a  semi-war  footing  with  a  nation  with  which  we  are 
at  peace. ^ 

1  For.  Rel.  1898,  750,  757-758. 

By  a  Joint  Resolution  of  the  Congress,  approved  April  20,  1898,  the  United 
States  recognized  the  independence  of  the  people  of  Cuba,  demanded  that 
the  Government  of  Spain  relinquish  its  authority  and  government  over  that 
island,  and  withdraw  its  land  and  naval  forces  therefrom,  and  also  directed 
the  President  to  use  the  military  and  naval  forces  of  the  United  States  to 
carry  the  resolution  into  effect.  For.  Rel.  1898,  763.  On  April  22,  the 
President  proclaimed  a  blockade  of  certain  portions  of  the  coast  of  Cuba, 
Id.,  769.  An  Act  of  Congress  approved  April  25,  declared  the  existence  of 
war  with  Spain  from  and  including  April  21.  Id.,  772.  C/.  President  Mclvin- 
ley.  Annual  Message,  Dec.  5,  1898,  id.,  Iv.  See,  also.  President  Cleveland, 
Annual  Message,  Dec.  7,  1896,  For.  Rel.  1896,  xxix,  Moore,  Dig.,  VI,  124, 
129:  Mr.  Sherman,  Secv.  of  State,  to  General  Woodford,  Minister  to  Spain, 
July  16,  1897,  For.  Rel.  1898,  558,  Moore,  Dig.,  VI,  139,  142.  Cf.  Senor 
Gullon,  Minister  of  State,  to  General  Woodford,  American  Minister,  Feb.  1, 
1898,  For.  Rel.  1898,  658,  Moore,  Dig.,  VI,  166,  167-168. 

Declares  Professor  Moore,  in  his  work  on  American  Diplomacy  (edition 
of  1918),  p.  208  :  "The  destruction  of  the  Maine  doubtless  kindled  the  intense 
popular  feeling  without  which  wars  are  seldom  entered  upon ;  but  the  govern- 
ment of  the  United  States  never  charged  —  on  the  contrary,  it  refrained  from 

128 


PANAMA  [§  82 

§  82.   Panama. 

In  November,  1903,  the  United  States  intervened  to  prevent  the 
suppression  by  Colombia  of  the  revolution  of  Panama.^  The 
acts  of  intervention  took  the  form  of  the  prevention  of  the  landing 
of  armed  forces  on  the  Isthmus,  the  bombardment  of  the  town  of 
Panama,  and  the  recognition  of  Panama  as  a  State. ^  Justifica- 
tion was  declared  by  President  Roosevelt  to  be  found  in  :  first,  our 
treaty  rights;  second,  our  national  interests  and  safety;  and, 
third,  the  interests  of  collective  civilization.^ 

It  was  contended  that  by  virtue  of  Article  XXXV  of  the  treaty 
of  December  12,  1846,  between  the  United  States  and  New  Gra- 
nada (the  predecessor  of  Colombia),  the  former  not  only  assumed 
the  duty  to  guarantee  the  constant  "  neutrality  "  of  the  Isthmus, 
but  also  acquired  the  right  to  maintain  the  free  and  open  transit 
thereof,  and  incidentally  the  further  right  to  prevent  the  commis- 
sion of  any  warlike  acts  in  the  Isthmian  Zone  by  whomsoever 
committed.^ 

charging  ■ —  that  the  catastrophe  was  to  be  attributed  to  'the  direct  act  of  a 
Spanish  official.'  Its  intervention  rested  upon  the  ground  that  there  existed 
in  Cuba  conditions  so  injurious  to  the  United  States,  as  a  neighboring  nation, 
that  they  could  no  longer  be  endured.  Its  action  was  analogous  to  what  is 
known  in  private  law  as  the  abatement  of  a  nuisance." 

1  See  instructions  to  Naval  Officers  of  the  United  States,  Nov.  2-5,  1903, 
For.  Rel.  1903,  247-248,  Moore,  Dig.,  Ill,  46. 

2  President  Roosevelt,  special  message,  Jan.  4,  1904,  For.  Rel.  1903,  260, 
272,  Moore,  Dig.,  Ill,  56,  71. 

3  For.  Rel.  1903,  273,  Moore,  Dig.,  Ill,  71. 

*  Art.  XXXV  of  the  treaty  of  1846  is  in  part  as  follows :  "The  Government 
of  New  Granada  guarantees  to  the  Government  of  the  United  States  that  the 
right  of  way  or  transit  across  the  Isthmus  of  Panama  upon  any  modes  of  com- 
munication that  now  exist,  or  that  may  be  hereafter  constructed,  shall  be 
open  and  free  to  the  Government  and  citizens  of  the  United  States,  and  for 
the  transportation  of  any  articles  of  produce,  manufactures  or  merchandise, 
of  lawful  commerce,  belonging  to  the  citizens  of  the  United  States ;  .  .  .  And, 
in  order  to  secure  to  themselves  the  tranquil  and  constant  enjoyment  of  these 
advantages,  and  as  an  especial  compensation  for  the  said  advantages,  and  for 
the  favors  they  have  acquired  by  the  4th,  5th,  and  6th  Articles  of  this  treaty, 
the  United  States  guarantee,  positively  and  efficaciously,  to  New  Granada, 
by  the  present  stipulation,  the  perfect  neutrality  of  the  before-mentioned 
isthmus,  with  the  view  that  the  free  transit  from  the  one  to  the  other  sea  may 
not  be  interrupted  or  embarrassed  in  any  future  time  while  this  treaty  exists ; 
and,  in  consequence,  the  United  States  also  guarantee,  in  the  same  manner,  the 
rights  of  sovereignty  and  property  which  New  Granada  has  and  possesses  over 
the  said  territory."     M alloy's  Treaties,  I,  312. 

With  reference  to  the  divergent  interpretations  of  the  treaty  on  the  part 
of  Colombia  and  the  United  States,  see  President  Roosevelt,  special  message, 
Jan.  4,  1904,  For.  Rel.  1904,  260-278,  Moore,  Dig.,  Ill,  56 ;  also  correspond- 
ence between  Mr.  Hay,  Secv.  of  State,  and  Gen.  Picyes,  Colombian  Envov  on 
special  mission,  December, '1903,  and  January,  1904,  For.  Rel.  1903,  283-314, 
Moore,  Dig.,  Ill,  78-113. 

Intervention  OF  THE  United  States  in  The  World  War  in  1917.  Con- 
cerning the  causes  which  led  the  United  States  to  become  a  belligerent  on  the 
side  of  the  Allied  Powers,  see  Maritime  Warfare,  infra,  §§  747-749. 

VOL.  1  —  5  129 


§83]  RIGHTS   OF   POLITICAL   IKDEPENDENCE 

§  83.    Certain  Minor  Instances. 

In  the  course  of  the  Chile-Peruvian  war  in  1881,  Mr.  Blaine, 
Secretary  of  State,  fearful  lest  Chilean  demands  for  Peruvian  ter- 
ritory as  a  condition  of  peace  might  prove  destructive  of  Peruvian 
nationality,  instructed  Mr.  Trescot,  special  envoy  to  the  bellig- 
erent States,  to  lodge  such  a  protest  and  take  such  a  stand  as  might 
have  been  fairly  looked  upon  as  amounting  to  intervention.^  The 
instruction  was,  however,  a  few  weeks  later  modified  by  Secretary 
Frelinghuysen  (Mr.  Blaine's  immediate  successor),  and  the  United 
States  did  not  in  fact,  in  its  subsequent  conduct,  have  recourse 
to  such  interference.^ 

1  Mr.  Blaine  expressed  surprise  and  regret  at  the  treatment  accorded  the 
Calderon  government  of  Peru  by  Chile,  which  had  forbidden  that  government 
to  exercise  its  functions  within  territory  occupied  by  the  Chilean  army,  and 
which  had  arrested  President  Calderon.  The  Secretary  declared  that  if  it 
should  be  avowed  that  the  motive  for  such  action  was  resentment  by  Chilean 
authorities  on  account  of  the  continued  recognition  by  the  United  States  of 
the  Calderon  government,  the  proceeding  would  be  regarded  by  the  President 
"as  an  intentional  and  unwarranted  offense"  and  regarded  by  the  Govern- 
ment of  the  United  States  "as  an  act  of  such  unfriendly  import  as  to  require 
the  immediate  suspension  of  all  diplomatic  intercourse."  Mr.  Blaine  added 
that  should  the  Chilean  government,  while  disclaiming  any  intention  of  offense, 
maintain  its  right  to  settle  its  difficulties  with  Peru  without  the  friendly  inter- 
vention of  other  powers,  and  refuse  to  allow  the  formation  of  any  government 
in  Peru  which  did  not  pledge  its  consent  to  the  cession  of  Peruvian  territory, 
it  would  be  Mr.  Trescot's  duty  in  language  as  strong  as  was  consistent  with 
the  respect  due  an  independent  power,  to  express  the  disappointment  and 
dissatisfaction  felt  by  the  United  States  at  such  a  deplorable  policy.  He  ad- 
mitted that  if  Peru  was  unable  or  unwilling  to  furnish  adequate  indemnities 
for  specified  purposes,  the  right  of  conquest  put  it  in  the  power  of  Chile  to 
satisfy  itself,  and  that  the  reasonable  exercise  of  that  right,  however  to  be 
regretted,  was  not  a  legitimate  ground  of  foreign  complaint.  He  declared, 
however,  that  the  Government  of  the  United  States  felt  that  the  exercise  of 
the  right  of  absolute  conquest  was  dangerous  to  the  best  interests  of  all  re- 
publics of  the  American  continents,  and  that  from  it  were  certain  to  spring 
other  wars  and  political  disturbances.  He  maintained  that  Peru  had  the  right 
to  demand  that  opportunity  be  allowed  her  to  find  the  requisite  indemnity 
and  guarantee,  and  he  announced  that  the  United  States  could  not  admit 
that  a  section  of  territory  could  be  properly  exacted  far  exceeding  in  value 
the  amplest  estimate  of  a  reasonable  indemnity.  He  declared  that  if  the 
good  offices  of  the  United  States  were  rejected  and  the  policy  of  absorption  of 
an  independent  State  were  persisted  in,  the  United  States  would  consider 
itself  discharged  from  any  further  obligation  to  be  influenced  in  its  action  by 
the  position  which  Chile  had  assumed,  and  would  hold  itself  free  to  appeal  to 
the  other  American  republics  to  join  it  in  an  effort  to  avert  consequences  which 
could  not  be  confined  to  Chile  and  Peru,  but  which  threatened  with  extremest 
danger  the  political  institutions,  the  peaceful  progress,  and  the  liberal  civiliza- 
tion of  all  America.  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Trescot,  No.  2,  Dec.  1, 
1881,  For.  Rel.  1881,  143,  Moore,  Dig.,  VI,  39. 

2  Mr.  FreUnghuysen,  Secy,  of  State,  to  Mr.  Trescot,  No.  6,  Jan.  9,  1882, 
For.  Rel.  1882,  57,  Moore,  Dig.,  VI,  40.  Also  Same  to  Mr.  Phelps,  Minister 
to  Peru,  No.  6,  July  26,  1883,  For.  Rel.  1883,  709,  Moore,  Dig.,  VI,  42;  Same 
to  Same,  No.  8,  Aug.  25,  1883,  For.  Rel.  1883,  711,  Moore,  Dig.,  VI,  42. 

In  1913,  President  Wilson  not  only  declined  to  recognize  the  Mexican 
government  of  General  Huerta,  but  also,  as  has  been  noted  {supra,  §  44)  made 
known  to  certain  foreign  powers  his  sense  of  duty  to  require  Huerta's  retire- 

130 


CERTAIN  MINOR  INSTANCES  [§  83 

In  the  process  of  its  acquisition  of  rights  of  sovereignty  over 
the  Island  of  Tutuila  and  adjacent  islands  in  the  Samoan  group, 
the  United  States  seems  to  have  had  recourse  to  intervention,  in 
so  far  as  it  caused  the  Samoans  to  accept  the  form  of  government 
prescribed  by  the  General  Act  of  the  Conference  at  Berlin  in  1889/ 
to  yield  to  a  cessation  of  hostilities  in  the  fight  for  the  kingship, 
and  to  bow  to  the  tri-partite  agreement  of  1899,  concluded  by  the 
United  States  with  Great  Britain  and  Germany.-  It  was  by  vir- 
tue of  British  and  German  renunciations  therein  of  territorial  pre- 
tensions, rather  than  by  any  other  means,  that  the  United  States 
appears  to  have  perfected  its  rights.  No  native  government 
in  those  islands  seems  to  have  been  regarded  at  that  time  as 
possessed  of  rights  of  political  independence  or  of  property  and 
control  which  the  parties  to  the  arrangement  regarded  themselves 
as  obliged  to  respect.^ 

ment,  and  his  opinion  that  the  United  States  should  proceed  to  employ  such 
means  as  might  be  necessary  to  secure  that  result.  Those  powers  were,  ac- 
cordingly, called  upon  to  exert  their  influence  to  impress  upon  Huerta  the 
wisdom  of  retiring  in  the  interest  of  peace  and  constitutional  government  in 
Mexico.     For.  Rel.  1913,  856. 

1  President  Cleveland,  Annual  Message,  Dec.  3,  1894,  For.  Rel.  1894, 
xv-xvi,  Moore,  Dig.,  I,  548.  For  the  text  of  the  General  Act  for  the  Neu- 
trality and  Autonomous  Government  of  the  Samoan  Islands,  concluded 
June  14,  1889,  by  the  United  States,  Great  Britain  and  Germany,  see  Malloy's 
Treaties,  II,  1576. 

2  Malloy's  Treaties,  II,  1595. 

^  See,  generally,  documents  in  Moore,  Dig.,  I,  536-554. 

Demands  of  the  Allied  Powers  on  China  Following  the  Boxer  Trou- 
bles OF  1900.  Following  the  military  operations  of  the  allied  expedition  in 
China  in  1900,  to  raise  the  siege  of  the  legations  at  Peking,  the  United  States  in 
conjunction  with  Austria-Hungary,  Belgium,  France,  Great  Britain,  Germany, 
Italy,  Japan,  Russia  and  Spain,  compelled  China  to  yield  to  heavy  demands. 
These  embraced  not  only  various  forms  of  reparation  for  wrongs  sustained 
in  the  course  of  the  so-called  "Boxer"  troubles,  but  also  measures  specially 
designed  to  prevent  a  recurrence  of  acts  such  as  had  been  committed.  These 
measures,  which  were  embodied  in  the  final  protocol  of  Sept.  7,  1901,  Malloy's 
Treaties,  II,  2006,  involved  the  relinquishment  by  China  of  certain  important 
rights.  Thus  she  was  obliged  to  yield  the  special  reservation  of  the  so-called 
Legation  quarter  in  Peking,  together  with  the  exclusive  control  thereof,  em- 
bracing the  fullest  right  of  defense,  to  the  interested  Powers.  Art.  VII.  She 
was  forced  to  consent  to  the  razing  of  the  forts  at  Taku  and  those  which  might 
impede  free  communication  between  Peking  and  the  sea,  Art.  VIII,  and  the 
occupation  by  the  Powers  of  certain  points  for  the  maintenance  of  communica- 
tion between  the  capital  and  the  sea.  Art.  IX.  She  was  compelled  to  agree 
to  prohibit  the  importation  of  arms  and  ammunition,  as  well  as  materials  used 
exclusively  in  their  manufacture.  Art.  V.  She  was  obliged  also  to  transform 
her  Office  of  Foreign  Affairs  (Tsungli  Yamen)  into  a  Ministry  of  Foreign 
Affairs  on  lines  indicated  by  the  Powers,  and  to  give  it  precedence  over  the 
other  six  Ministries  of  State,  and  simultaneously  modify  the  existing  cere- 
monial respecting  the  reception  of  foreign  dijilomatic  representatives.  Art. 
XII.  Save  for  these  and  kindred  concessions,  the  United  States  had,  however, 
no  design  which  was  at  variance  with  the  policy  announced  by  Secretary  Hay 
in  July,  1900,  and  which  aimed  to  "preserve  Chinese  territorial  and  adminis- 
trative entity."     For.  Rel.   1900,  299.     The  interference  with  the  political 

131 


§  83]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

The  nature  and  extent  of  the  right  asserted  by  the  United 
States  to  restrict  the  freedom  of  action  of  foreign  powers  with 
respect  to  certain  forms  of  action  affecting  States  of  the  American 
continents,  and  by  virtue  of  what  is  known  as  the  Monroe  Doctrine, 
require  separate  examination.^ 


§  84.   The  League  of  Nations  and  Intervention. 

The  Covenant  of  the  League  of  Nations,  in  so  far  as  it  estab- 
lishes a  right  of  interference  in  case  of  a  breach  of  the  agreement 
by  a  member  of  the  League,  as  manifested,  for  example,  in  aggres- 
sion against  the  territorial  integrity  or  political  independence  of 
a  member,^  or  in  disregard  of  the  undertaking  not  to  resort  to  war 
under  specified  conditions,^  is  not  at  variance  with  any  principle 
of  international  law  pertaining  to  intervention.  It  is  the  consent 
to  interference  under  the  contingencies  set  forth  in  the  compact 
which  prevents  such  action  when  taken  against  any  member  prov- 
ing to  be  a  covenant-breaker  from  resembling  the  case  where 
external  opposition  is  in  plain  defiance  of  the  will  of  the  State 
which  is  thwarted. 

A  different  situation  is  contemplated,  however,  when  it  is  de- 
signed to  compel  a  State  which  has  not  accepted  the  Covenant 
to  refrain  from  action  which  as  an  independent  sovereign  it  sees 
fit  to  take.  According  to  Article  XVII  of  the  Covenant,  in  the 
event  of  a  dispute  between  a  member  of  the  League  and  a  State 
which  is  not  a  member,  if  the  latter  refuses  the  invitation  (which 
is  to  be  made  to  it  upon  such  conditions  as  the  Council  of  the 

independence  of  China,  manifested  in  the  demands  made  of  her,  was  a  natural 
incident  or  consequence  of  the  military  expedition  of  the  Powers  to  relieve 
the  legations,  and  was  necessitated  by  the  nature  and  extent  of  the  disturb- 
ances which  led  to  that  expedition.  Concerning  events  which  preceded  the 
raising  of  the  siege  of  the  legations,  see  Landing  of  Foreign  Forces,  infra,  §  202. 

1  The  United  States  at  various  times  objected  to  the  exercise  of  a  protector- 
ate by  Great  Britain  over  the  Mosquito  Indians,  on  the  ground  that  such 
action  was  in  violation  of  the  convention  between  the  United  States  and  Great 
Britain  of  April  19,  1850,  known  as  the  Clayton-Bulwer  Treaty,  as  well  as 
in  conflict  with  the  spirit  of  the  Monroe  Doctrine.  See  statement  of  Mr. 
Buchanan,  Minister  to  Great  Britain  for  the  Earl  of  Clarendon,  Jan.  6,  1854, 
Brit,  and  For.  State  Pap.,  XLVI,  244,  247,  H.  Ex.  Doc.  1,  34  Cong.,  1  Sess.  55, 
Moore,  Dig.,  Ill,  154,  159;  statement  of  Lord  Clarendon  for  Mr.  Buchanan, 
May  2,  1854,  Brit,  and  For.  State  Pap.,  XLVI,  255,  H.  Ex.  Doc.  1,  34  Cong.,  1 
Sess.,  80,  Moore,  Dig.,  Ill,  161 ;  Memorandum  of  General  Cass,  Secy,  of  State, 
of  conversations  with  M.  Sartiges,  Dec.  1,  1858,  MS.  Inst.  Am.  States,  XVI, 
22,  Moore,  Dig.,  Ill,  178,  note;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Phelps, 
Minister  to  Great  Britain,  Nov.  23,  1888,  For.  Rel.  1888,  I,  759-767,  Moore, 
Dig.,  Ill   227,  236. 

*  Art.  X.  3  Arts.  XII  and  XV. 

132 


PRELIMINARY  [§  85 

League  may  deem  just)  to  accept  the  obligations  of  membership 
in  the  League  for  the  purposes  of  adjusting  the  dispute,  and  re- 
sorts to  war  against  a  member  of  the  League,  the  war-waging 
State  exposes  itself  to  the  drastic  measures  to  be  applied  by  the 
League  and  its  several  members  against  a  covenant-breaker.^  In 
a  word,  the  States  constituting  and  adhering  to  the  League  assert 
the  right  to  interfere  with  and  prevent  the  making  of  war  by  an 
outside  power  upon  one  of  their  members  save  under  contingencies 
which  they  prescribe.  These  deserve  attention.  War  is  in  no 
case  to  be  made  until  three  months  after  an  arbitral  award  or  a 
report  by  the  Council  of  the  League.  If  arbitration  is  in  fact 
avoided,  the  issue  must  be  referred  to  the  Council  whose  report, 
with  its  recommendations  for  the  just  settlement  of  the  contro- 
versy, if  unanimously  agreed  to  by  the  members  thereof  other 
than  the  representatives  of  the  parties  to  the  controversy,  deprives 
the  losing  State  of  the  right  to  go  to  war  with  its  adversary  com- 
plying with  those  recommendations.^  It  is  the  right  of  an  out- 
side State  to  refuse  to  submit  to  such  procedure,  with  the  incidental 
obligation  not  to  fight  under  such  a  contingency,  which  the  mem- 
bers of  the  League  of  Nations  appear  to  challenge.  Technically 
their  interference  with  such  a  State  must  be  regarded  as  amounting 
to  intervention,  the  propriety  of  which  on  principle  would  depend 
upon  the  merits  of  the  particular  case,  unless  it  be  admitted  that 
the  States  constituting  the  League  may  by  virtue  of  their  organ- 
ization alter  the  principles  of  international  law.  The  United 
States  is  not  as  yet  prepared  to  make  such  an  admission. 


THE  MONROE  DOCTRINE 

a 

§  85.   Preliminary. 

In  examining  the  practice  of  the  United  States  in  attempting 
to  check  the  conduct  of  foreign  powers  by  reason  of  its  special 
relation  to  States  or  territory  situated  in  the  Western  Hemisphere, 
the  attempt  is  here  made  primarily  to  observe  the  precise  charac- 

^  Art.  XVI.  Art.  XVII  also  provides  that  if  both  parties  to  a  dispute,  when 
so  invited,  refuse  to  accept  the  obhgations  of  membership  in  the  League  for 
the  purposes  of  such  dispute,  the  Council  may  take  such  measures  and  make 
such  recommendations  as  will  prevent  hostilities  and  will  result  in  the  settle- 
ment of  the  dispute.  This  provision  would  appear  to  cover  the  case  where 
neither  party  to  the  controversy  is  a  member  of  the  League. 

2  Arts.  XII  and  XV. 

133 


§85]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

ter  of  acts  which  have  been  thwarted,  the  grounds  relied  upon  in 
justification  of  interference,  and  the  mode  by  which  such  action 
has  been  taken. ^  It  is  not  sought  to  trace  the  development  of  a 
national  policy,  or  to  emphasize  the  extent  of  the  divergence  be- 
tween current  interpretations  of  it  and  those  of  1823.  The  pur- 
pose is  rather  to  take  full  note  of  the  magnitude  of  the  claims  of 
the  United  States,  however  much  they  may  differ  from  those 
once  put  forward  in  its  behalf,  and  to  perceive  the  legal  theory 
on  which  they  rest. 

It  has  seemed  important  to  observe  also  the  relation  of  what  is 
asserted  by  virtue  of  the  Monroe  Doctrine,  both  to  international 
law  and  to  the  Covenant  of  the  League  of  Nations. 

b 
§  86.    Prior  Events. 

Some  time  before  President  Monroe  gave  utterance  to  the  policy 
expressed  in  his  message  of  December  2,  1823,  American  states- 
men had  not  infrequently  declared  that  the  United  States  could 
not,  for  reasons  of  self-defense,  look  with  indifference  upon  certain 

1  For  bibliographies  of  the  extensive  literature  dealing  with  the  Monroe 
Doctrine,  see  Library  of  Congress,  List  of  References  on  the  Monroe  Doctrine, 
compiled  under  direction  of  Herman  H.  B.  Meyer,  Chief  Bibhographer, 
Washington,  1919;  also  Albert  Bushnell  Hart,  The  Monroe  Doctrine:  An 
Interpretation,  Boston,  1916,  405-421 ;  Herbert  Kraus,  Die  Monroedoktrin, 
Berlin,  1913,  19-36  ;  Edith  M.  Phelps,  Selected  Articles  on  the  Monroe  Doc- 
trine, 2  ed..  New  York,  1916,  XVII-XXXIII.  These  bibliographies  are 
mentioned  in  the  Library  of  Congress,  List  of  References. 

For  documents  relative  to  the  origin  of  the  Monroe  Doctrine,  see  collection 
by  Worthington  C.  Ford  from  among  the  papers  of  John  Quincy  Adams  and 
from  the  Department  of  State,  published  in  Proceedings  of  Massachusetts  Hist. 
Soc,  XV,  373-429;  also  Moore,  Dig.,  VI,  369-412;  Memoirs  of  John  Quincy 
Adams,  comprising  portions  of  his  diary  from  1795-1848,  edited  by  Charles 
Francis  Adams,  Philadelphia,  1875,  Vol.  VI.  The  messages  and  addresses  of 
the  Presidents  and  the  diplomatic  correspondence  of  the  United  States  con- 
tain the  views  of  responsible  American  statesmen. 

Among  the  numerous  works  touching  the  subject,  the  few  following,  which 
reveal  a  diversity  of  views,  may  be  noted :  Archibald  Cary  Coolidge,  The 
United  States  as  a  World  Power,  New  York,  1908  (reprinted  1919),  95-120; 
Thomas  Benton  Edgington,  The  Monroe  Doctrine,  Boston,  1905 ;  John  W. 
Foster,  A  Century  of  American  Diplomacy,  Boston,  1900,  438-478 ;  Albert 
Bushnell  Hart,  The  Monroe  Doctrine :  An  Interpretation,  Boston,  1916  ; 
William  Isaac  Hull,  The  Monroe  Doctrine :  National  or  International  ?  New 
York,  1915;  Herbert  Kraus,  Die  Monroedoktrin  in  ihren  Beziehungen  zur 
amerikanischen  Diplomatic  und  zum  Volkerrecht,  Berlin,  1913 ;  John  Bassett 
Moore,  Principles  ^  of  American  Diplomacy,  New  York,  1918,  Chap.  VI; 
Hector  Petin,  Les  Etats-Unis  et  la  doctrine  de  Monroe,  Paris,  1900 ;  William  F. 
Reddaway,  The  Monroe  Doctrine,  2  ed..  New  York,  1905  ;  Charles  H.  Sherrill, 
Modernizing  the  Monroe  Doctrine,  Boston,  1916 ;  George  F.  Tucker,  The 
Monroe  Doctrine,  Boston,  1885  ;  Hiram  Bingham,  The  Monroe  Doctrine  :  An 
Obsolete  Shibboleth,  New  Haven,  1915.  See,  also,  series  of  papers  concerning 
the  Monroe  Doctrine  in  Anjials  of  American  Academy  of  Pol.  and  Soc.  Science, 
entitled  "International  Relations  of  the  United  States",  Julj^  1914,  LFV,  Part 
1 ;  also  another  series  in  Proceedings,  Am.  Soc.  Int.  Law,  1914,  Vol.  VIII. 

134 


PRIOR  EVENTS  [§  86 

action  of  European  States  with  reference  to  the  American  conti- 
nents. It  was  the  possible  transfer  of  American  colonial  posses- 
sions by  one  European  power  to  another,  which  seems  to  have 
been  a  cause  of  special  anxiety.^ 

Before  the  close  of  the  year  1823,  the  United  States  had  wit- 
nessed a  series  of  events  in  Europe  which  were  productive  of  grave 
alarm.  As  a  result  of  the  Holy  Alliance  of  September  26,  1815,^ 
and  of  the  subsequent  Conferences  of  Aix-la-Chapelle,  Troppau 
and  Laybach,^  the  Allied  Powers  of  Europe  had  not  only  declared 
themselves  possessed  of  the  right  to  overthrow  governments 
founded  on  revolution,  but  had  also  proceeded  to  act  upon  that 
principle.  In  1822  revolutions  in  Naples  and  Piedmont  had  been 
suppressed.  The  following  year,  in  pursuance  of  an  understanding 
agreed  upon  at  the  Congress  of  Verona  in  1822,  France  had  over- 
thrown the  constitutional  government  in  Spain,  and  had  rees- 
tablished the  ]Monarchy  of  Ferdinand  VII.^  It  had,  furthermore, 
been  made  known  to  the  United  States  by  ]Mr.  Canning,  the 
British  Foreign  Secretary,  that  upon  the  achievement  of  military 
objects  in  Spain,  proposal  would  be  made  for  a  consultation  of 
the  Allies  concerning  affairs  in  Spanish-America ;  that  a  concerted 
movement  to  enable  Spain  to  regain  control  over  her  revolutionary 
colonies  in  America  was  to  be  anticipated. "^      ]Mr.  Canning   had 

1  Mr.  King,  Minister  to  Great  Britain,  to  the  Secy,  of  State,  June  1,  1801, 
Am.  St.  Pap.,  For.  Rel,  II,  509,  Moore,  Dig.,  VI,  370 ;  President  Jefferson  to 
the  Governor  of  Louisiana,  Oct.  29,  1808,  Ford's  Writings  of  Jefferson,  IX, 
212,  Moore,  Dig.,  VI,  371. 

In  pursuance  of  a  recommendation  of  President  Madison,  Congress  resolved 
January  15,  1811,  that  by  reason  of  "the  influence  which  the  destiny  of  the 
territory  adjoining  the  southern  border  of  the  United  States  may  have  upon 
their  security,  tranquilhty  and  commerce",  the  United  States  could  not 
"without  serious  inquietude,  see  any  part  of  the  said  territory  pass  into  the 
hands  of  any  foreign  power",  and  that  regard  for  the  safety  of  the  United 
States  compelled  provision  under  certain  contingencies  for  the  temporary 
occupation  of  East  Florida  by  the  United  States.  The  President  was,  therefore, 
authorized  to  take  posses.sion  of  East  Florida  in  case  an  arrangement  had 
been  made  for  the  transfer  of  its  possession,  or  in  the  event  of  its  occupation 
by  a  foreign  State.  His  employment  of  the  army  and  navy  of  the  ITnited 
States  was  further  authorized,  and  $100,000  was  appropriated  to  defray 
expenses.  3  Stat.  471 ;  Am.  St.  Pap.,  For.  Rel.,  Ill,  571 ;  Moore,  Dig.,  VI, 
372. 

2  Brit,  and  For.  State  Papers,  III,  211. 

^  Concerning  the  Congress  of  Aix-la-Chapelle,  which  was  held  in  1818,  see 
Nouv.  Rec,  IV,  549-566.  The  Conference  at  Troppau  convened  in  October, 
1820,  and  was  removed  later  to  Lavbach.  See,  in  this  connection,  Woolsey, 
6  ed.,  §  47;  also  Mr.  Adams,  Secv.  of  State,  to  Mr.  Thompson,  Secy,  of  Navy, 
May  20,  1819,  17  MS.  Dom.  Let.  304,  Moore,  Dig.,  VI,  375;  Same  to  Mr. 
Middleton,  American  Minister  to  Russia,  No.  1,  July  5,  1820,  MS.  Inst,  to 
U.  S.  Ministers,  IX,  18,  Moore,  Dig.,  VI.  376. 

■»  The  Congress  of  Verona  occurred  in  the  autumn  of  1822. 

5  Mr.  Canning,  to  Mr.  Ru.sh,  "private  and  confidential",  Aug.  23,  1823, 
Moore,  Dig.,  VI,  392. 

\35 


§  86]  RIGHTS   OF  POLITICAL   INDEPENDENCE 

also  suggested  the  united  action  on  the  part  of  his  Government 
and  that  of  the  United  States  to  oppose  the  European  design.^ 

Between  the  United  States  and  Russia  there  had  been  diplo- 
matic discussions  relating  to  the  neutrality  of  both  States  in  the 
conflict  between  Spain  and  its  American  colonies,^  and  also  to  the 
extent  of  Russian  possessions  on  the  northwest  coast  of  America. 
Mr.  Adams,  Secretary  of  State,  had  vigorously  opposed  the  claim 
of  Russia  to  rights  of  sovereignty  as  far  south  as  the  fifty-first 
degree  of  latitude.^  This  issue  was  quite  distinct  from  that  per- 
taining to  the  relationship  which  Russia  or  any  other  European 
power  might  assume  with  respect  to  the  revolutionary  movement 
in  Spanish  America.  The  difference  between  these  two  problems, 
the  one  concerning  the  acquisition  of  rights  of  sovereignty  over 
American  territory,  the  other  concerning  interference  or  non- 
interference with  struggles  therein  for  political  independence,  was 
not  lost  sight  of  in  the  United  States.^ 


§  87.   President  Monroe's  Message. 

Such  briefly,  was  the  situation  when  President  Monroe  declared 
in  his  annual  message  of  December  2,  1823  : 

At  the  proposal  of  the  Russian  Imperial  Government,  made 
through  the  minister  of  the  Emperor  residing  here,  a  full  power 
and  instructions  have  been  transmitted  to  the  minister  of  the 

1  For  the  Canning-Rush  negotiations,  see  Moore,  Dig.,  VI,  386-392,  and 
documents  there  cited;  also  Worthington  C.  Ford's  texts  of  original  docu- 
ments on  the  genesis  of  the  Monroe  Doctrine  contained  in  Proceedings,  Massa- 
chusetts Hist.  Soc,  XV,  412-434.  For  the  text  of  the  Monroe-Jeflferson- 
Madison  correspondence  in  1823,  Moore,  Dig.,  VI,  393-397,  and  documents 
there  cited. 

2  Memorandum  of  Mr.  Adams,  Secy,  of  State,  1823,  giving  account  of  his 
communications  with  Baron  Tuyll,  the  Russian  Minister  at  Washington,  as 
given  by  Worthington  C.  Ford  in  Proceedings,  Massachusetts  Hist.  Soc,  XV, 
394;  Moore,  Dig.,  VI,  397,  citing  MS.  Inst.  Special  Missions,  I,  1.  See  note 
of  Baron  Tuyll  to  Mr.  Adams,  Oct.  4/16,  1823,  Adams  MSS.,  Proceedings, 
Massachusetts  Hist.  Soc,  XV,  400.  Also  observations  of  Mr.  Adams  with 
respect  to  communications  from  the  Russian  Minister,  Nov.  27,  1823,  id.,  405. 

3  Mr.  Adams,  Secy,  of  State,  to  Mr.  Middleton,  No.  16,  July  22,  1823, 
American  State  Papers,  For.  Rel.,  V,  436. 

*  Concerning  discussions  in  President  Monroe's  Cabinet  in  November, 
1823,  see  statement  in  Moore,  Dig.,  VI,  399-401,  citing  Memoirs  of  J.  Q. 
Adams,  VI,  177,  185,  186,  192,  194,  199,  200,  205,  and  206.  See,  also,  docu- 
ments published  by  Worthington  C.  Ford  in  Proceedings,  Massachusetts  Hist. 
Soc,  XV,  408-412";  "John  Quincy  Adams  and  The  Monroe  Doctrine"  (by  the 
same  author).  Am.  Hist.  Rev.,  VIII,  28,  in  which  is  published  (p.  46)  com- 
munication of  Mr.  Adams  to  Mr.  Rush,  American  Minister  at  London,  Nov.  30, 
1823  {citing  the  Adams  MSS.). 

136 


PRESIDENT  MONROE'S  MESSAGE  [§  87 

United  States  at  St.  Petersburg,  to  arrange,  by  amicable  ne- 
gotiation, the  respective  rights  and  interests  of  the  two  nations 
on  the  northwest  coast  of  this  continent.  A  similar  proposal 
has  been  made  by  his  Imperial  ^Majesty  to  the  Government 
of  Great  Britain,  which  has  likewise  been  acceded  to.  The 
Government  of  the  United  States  has  been  desirous,  by  this 
friendly  proceeding,  of  manifesting  the  great  value  which  they 
have  invariably  attached  to  the  friendship  of  the  Emperor,  and 
their  solicitude  to  cultivate  the  best  understanding  with  his 
Government.  In  the  discussions  to  which  this  interest  has 
given  rise,  and  in  the  arrangements  by  which  they  may  termi- 
nate, the  occasion  has  been  judged  proper  for  asserting  as  a 
principle  in  which  the  rights  and  interests  of  the  United  States 
are  involved,  that  the  American  continents,  by  the  free  and  in- 
dependent condition  which  they  have  assumed  and  maintain, 
are  henceforth  not  to  be  considered  as  subjects  for  future  colo- 
nization by  any  European  powers.  [Paragraph  7,  message  of 
December  2,  1823.] 

It  was  stated  at  the  commencement  of  the  last  session  that 
a  great  effort  was  then  making  in  Spain  and  Portugal  to  im- 
prove the  condition  of  the  people  of  those  countries,  and  that 
it  appeared  to  be  conducted  with  extraordinary  moderation. 
It  need  scarcely  be  remarked  that  the  result  has  been,  so  far, 
very  different  from  what  was  then  anticipated.  Of  events  in 
that  quarter  of  the  globe  with  which  we  have  so  much  inter- 
course, and  from  which  we  derive  our  origin,  we  have  always 
been  anxious  and  interested  spectators.  The  citizens  of  the 
United  States  cherish  sentiments  the  most  friendly  in  favor 
of  the  liberty  and  happiness  of  their  fellow-men  on  that  side 
of  the  Atlantic.  In  the  wars  of  the  European  powers  in  matters 
relating  to  themselves  we  have  never  taken  any  part,  nor  does 
it  comport  'uith  our  policy  so  to  do.  It  is  only  when  our  rights 
are  invaded  or  seriously  menaced  that  we  resent  injuries  or  make 
preparation  for  our  defense.  With  the  movements  in  this 
hemisphere  we  are,  of  necessity,  more  immediately  connected, 
and  by  causes  which  must  be  obvious  to  all  enlightened  and 
impartial  observers.  The  political  system  of  the  allied  powers 
is  essentially  different  in  this  respect  from  that  of  America. 
This  difference  proceeds  from  that  which  exists  in  their  respec- 
tive Governments.  And  to  the  defense  of  our  own,  which  has 
been  achieved  by  the  loss  of  so  much  blood  and  treasure,  and 
matured  by  the  wisdom  of  their  most  enlightened  citizens,  and 
under  which  we  have  enjoyed  unexampled  felicity,  this  whole 
nation  is  devoted.  We  owe  it,  therefore,  to  candor,  and  to  the 
amicable  relations  existing  between  the  United  States  and  those 
powers,  to  declare  that  we  should  consider  any  attempt  on  their 

137 


§  87]  RIGHTS   OP   POLITICAL   INDEPENDENCE 

part  to  extend  their  system  to  any  portion  of  this  hemisphere 
as  dangerous  to  our  peace  and  safety.  With  the  existing  col- 
onies or  dependencies  of  any  European  power  we  have  not 
interfered  and  shall  not  interfere.  But  with  the  governments 
who  have  declared  their  independence,  and  maintained  it,  and 
whose  independence  we  have,  on  great  consideration  and  on 
just  principles,  acknowledged,  we  could  not  view  any  inter- 
position for  the  purpose  of  oppressing  them,  or  controlling  in 
any  other  manner  their  destiny,  by  any  European  power,  in 
any  other  light  than  as  the  manifestation  of  an  unfriendly  dis- 
position towards  the  United  States.  In  the  war  between  these 
new  Governments  and  Spain  we  declared  our  neutrality  at  the 
time  of  their  recognition,  and  to  this  we  have  adhered  and 
shall  continue  to  adhere,  provided  no  change  shall  occur  which, 
in  the  judgment  of  the  competent  authorities  of  this  Govern- 
ment, shall  make  a  corresponding  change  on  the  part  of  the 
United  States  indispensable  to  their  security. 

The  late  events  in  Spain  and  Portugal  show  that  Europe  is 
still  unsettled.  Of  this  important  fact  no  stronger  proof  can 
be  adduced  than  that  the  allied  powers  should  have  thought 
it  proper,  on  any  principle  satisfactory  to  themselves,  to  have 
interposed,  by  force,  in  the  internal  concerns  of  Spain.  To 
what  extent  such  interposition  may  be  carried,  on  the  same 
principle,  is  a  question  in  which  all  independent  powders  whose 
governments  differ  from  theirs  are  interested,  even  those  most 
remote,  and  surely  none  more  so  than  the  United  States.  Our 
policy  in  regard  to  Europe,  which  was  adopted  at  an  early  stage 
of  the  wars  which  have  so  long  agitated  that  quarter  of  the  globe, 
nevertheless  remains  the  same,  which  is,  not  to  interfere  in  the 
internal  concerns  of  any  of  its  powers ;  to  consider  the  govern- 
ment de  facto  as  the  legitimate  government  for  us ;  to  cultivate 
friendly  relations  with  it,  and  to  preserve  those  relations  by  a 
frank,  firm,  and  manly  policy,  meeting,  in  all  instances,  the 
just  claims  of  every  power ;  submitting  to  injuries  from  none. 
But  in  regard  to  these  continents,  circumstances  are  eminently 
and  conspicuously  different.  It  is  impossible  that  the  allied 
powers  should  extend  their  political  system  to  any  portion  of 
either  continent  without  endangering  our  peace  and  happiness ; 
nor  can  any  one  believe  that  our  southern  bretliren,  if  left  to 
themselves,  would  adopt  it  of  their  owm  accord.  It  is  equally 
impossible,  therefore,  that  we  should  behold  such  interposition, 
in  any  form,  with  indifference.  If  we  look  to  the  comparative 
strength  and  resources  of  Spain  and  those  new  governments, 
and  their  distance  from  each  other,  it  must  be  obvious  that  she 
can  never  subdue  them.  It  is  still  the  true  policy  of  the  United 
States  to  leave  the  parties  to  themselves,  in  the  hope  that  other 

138 


THE  NON-COLONIZATION  PRINCIPLE  [§  88 

powers  will  pursue  the  same  course.     [Paragraphs  48  and  49, 
message  of  December  2,  1823.]  ^ 


§  88.   The  Non- Colonization  Principle. 

The  declaration  concerning  non-colonization  (as  expressed  in 
paragraph  7  of  the  message),  and  which  was  attributable  to  j\Ir. 
Adams,  Secretary  of  State,^  was  made  with  a  view  to  checking 
the  advance  of  Russian  colonial  establishments  on  the  northwest 
coast  of  America.^  It  was  based,  moreover,  on  the  assumption 
that,  with  the  exception  of  the  then  existing  colonial  possessions 
of  European  powers,  independent  States  possessed  rights  of  sover- 
eignty, and  hence  of  property  and  control,  over  the  entire  area 
of  the  two  American  continents,  and  that  there  remained,  there- 
fore, no  territory  therein  still  open  to  acquisition  by  means  of 
occupation.'*  This  claim  doubtless  did  not  rest  upon  any  con- 
tention that  there  were  no  lands  within  those  continents  which 
were  in  fact  unoccupied  or  over  which  enlightened  States  were 
in  reality  not  in  possession,  but  rather  upon  the  theory  that  the 
several  American  territorial  sovereigns  enjoyed  by  virtue  of  con- 
structive occupation,  exclusive  rights  of  ownership  and  sovereignty 
which  should  be  respected.^     It  should  be  observed  that  it  was 

1  Am.  State  Pap.,  For.  Rel.,  V,  246  and  2.50,  Moore,  Dig.,  VI,  401-403. 

2  Memoirs  of  John  Quincy  Adam.s,  edited  by  Charle.s  Francis  Adam.?,  XII, 
218,  with  reference  to  a  conversation  with  Mr.  Bancroft,  Dec.  6,  1845,  Moore, 
Dig.,  VI,  422.  See,  also,  speech  of  Mr.  John  C.  Calhoun,  in  the  Senate, 
May  15,  1848,  Calhoun's  Works,  IV,  454,  457,  and  following,  Moore,  Dig., 
VI,  424. 

^  Mr.  Adams,  Secv.  of  State,  to  Mr.  Rush,  American  Minister  at  London, 
No.  70,  July  22,  1823,  Am.  State  Pap.,  For.  Rel.,  V,  446,  447,  Moore,  Dig., 
VI,  412;  also  observations  of  Mr.  Adams,  Secv.  of  State,  communicated 
with  his  letter  to  Mr.  Middleton  of  Julv  22,  1823,  Am.  State  Pap.,  For. 
Rel.,  V,  443,  445,  Moore,  Dig.,  VI,  414. 

''The  principle,  declared  Mr.  Adams,  when  President  in  1826,  "rested 
upon  a  course  of  reasoning,  equally  simply  and  conclusive.  With  the  excep- 
tion of  the  existing  European  colonies,  which  it  was  in  nowise  intended  to 
disturb,  the  two  continents  consisted  of  several  sovereign  and  independent 
nations,  whose  territories  covered  their  whole  surface.  By  this,  their  inde- 
pendent condition,  the  Ignited  States  enjoyed  the  right  of  commercial  inter- 
course with  every  part  of  their  possessions.  To  attempt  the  establishment 
of  a  colony  in  tho.se  possessions,  would  be  to  usurp  to  the  exclusion  of  others 
a  commercial  intercourse  which  was  the  common  possession  of  all.  It  could 
not  be  done  without  encroaching  upon  existing  rights  of  the  United  States." 
Richardson's  Messages,  II.  334,  Moore,  Dig.,  VI,  417. 

^  Writes  Prof.  Moore  :  "It  has  sometimes  been  remarked  that  if  Mr.  Adams 
intended  to  do  no  more  than  announce  that  territory  already  occupied  by 
civilized  powers  was  not  subject  to  future  colonization,  he  merely  stated  a 
truism.  But  in  its  application  to  the  American  continents  at  that  time  the 
announcement  was  far  from  being  a  truism.  It  was  by  no  means  generally 
admitted  that  the  American  continents  were  then  wholly  occupied  by  civilized 

139 


§  88]  RIGHTS   OF   POLITICAL    INDEPENDENCE 

not  asserted  that  a  European  power  might  not  reasonably,  by 
some  process  other  than  colonization  or  occupation,  acquire  lawful 
title  to  American  soil. 


§  89.   The  Non-intervention  Principle. 

With  respect  to  the  latter  portion  of  the  message  (paragraphs 
48  and  49),  it  should  be  observed  that  the  declarations  were  di- 
rected against  possible  attempts  of  the  Allied  European  powers 
to  reestablish  monarchical  government  in  Spanish  America. 
Because  European  interposition  encroaching  upon  the  political 
independence  of  American  States  was  regarded  as  dangerous  to 
the  safety  of  the  United  States,  such  conduct  was  referred  to 
accordingly,  and,  therefore,  as  something  not  to  be  looked  upon 
with  indifference. 

f 

Scope  of  Opposition  to  Foreign  Territorial  Aggrandizement 

(1) 
§  90.    The  General  Claim. 

The  United  States  appears  to  assert  the  right  to  oppose  the 
acquisition  by  any  non-American  power  of  any  territorial  control 
over  American  soil  by  any  process.^  Objection  seems  to  be  made 
and  is  likely  to  be  anticipated,  whether  such  control  be  effected 
through  the  voluntary  transfer  by  an  existing  territorial  sovereign, 
republican  or  monarchical  in  its  government,^  or  be  attained  in 

nations.  There  were  vast  regions  of  territory  not  actually  settled  by  the 
subjects  of  civilized  powers."  Dig.,  VI,  414,  note.  See,  also,  in  this  connec- 
tion, Dana's  Wheaton,  Dana's  Note  No.  36. 

1  President  Polk,  Annual  Message,  Dec.  2,  1845,  S.  Doc.  No.  1,  29  Cong., 
1  Sess.,  14,  Moore,  Dig.,  VI,  420;  Report  of  Mr.  Fish,  Secy,  of  State,  to  the 
President,  July  14,  1870,  S.  Ex.  Doc.  No.  112,41  Cong.,  2  Sess.,  1,  3,  Moore, 
Dig.,  VI,  429,  431;  Mr.  Cass,  Secy,  of  State,  to  Mr.  Faulkner,  Minister  to 
France,  No.  27,  Aug.  31,  1860,  MS.  Inst.  France,  XV,  481,  Moore,  Dig.,  VI, 
480;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Hale,  Minister  to  Spain,  No.  35 
(confidential),  July  16,"  1866,  MS.  Inst.  Spain,  XV,  568,  Moore,  Dig.,  VI, 
507-508;  Mr.  Hay,  Secv.  of  State,  to  Mr.  Jackson,  Charge  at  Berlin,  No. 
1186,  April  10,  1901,  MS.  Inst.  Germany,  XXI,  283,  Moore,  Dig.,  VI,  583; 
President  Roosevelt,  Annual  Message,  Dec.  3,  1901,  For.  Rel.  1901,  xxxvi, 
Moore,  Dig.,  VI,  595. 

2  President  Polk,  special  message,  April  29,  1848,  concerning  the  offer  of 
the  Yucatan  to  transfer  the  "dominion  and  sovereignty"  of  that  countrv  to 
certain  States,  Cong.  Globe,  30  Cong.,  1  Sess.,  709,  Moore,  Dig.,  VI,  423; 
Mr.  Fish,  Secy,  of  State,  to  Count  Lewenhavipt,  Swedi.sh  and  Norwegian 
Minister,  Feb.  14,  1870,  concerning  the  possible  acceptance  by  Norway  and 
Sweden  of  an  offer  from  Italy  for  the  purchase  of  the  Island  of  St.  Bartholomew, 
MS.  Notes  to  Sweden,  VI,  221,  Moore,  Dig.,  VI,  428;    President  Grant,  An- 

140 


THE  GENERAL  CLAIM  [§  90 

consequence  of  forcible  encroachment  upon  it.  Thus  the  right 
is  apparently  asserted  to  interfere  with  the  political  independence 
of  an  American  grantor  consenting  to  the  cession  of  its  territory 
to  a  proscribed  grantee  of  the  Eastern  Hemisphere.  It  is  believed, 
moreover,  that  the  United  States,  if  confronted  with  the  actual 
problem,  might  evince  indifference  as  to  the  relative  proximity  to, 
or  remoteness  from,  its  domain  of  the  particular  area  concerned. 
The  basis  of  this  claim  is  necessarily  that  the  proper  defense  of 
the  United  States  is  rendered  difficult  and  its  safety  jeopardized 
by  the  transfer  generally  of  American  territory  to  non-American 
States,  and  to  a  degree  which  justifies  objection  to  any  acts  which 
if  tolerated  would  serve  to  diminish  respect  for,  and  so  weaken 
the  efficacy  of  this  mode  of  safeguarding  the  nation.^ 

The  acquisition  of  any  form  of  control  established  by  any  public 
agencies  of  non-American  States  would  appear  to  be  regarded  as 
at  variance  with  the  foregoing  requirements.  In  1912,  the  Senate 
of  the  United  States,  whether  or  not  sharing  the  fears  that  had 

nual  Message,  Dec.  6,  1869,  Richardson's  Messages,  VII,  32,  Moore,  Dig.,  VI, 
429;  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Logan,  Minister  to  Central  America, 
No.  53  (confidential).  Mar.  4,  1880,  with  reference  to  the  possible  transfer  of 
the  Bay  Islands  by  Honduras  to  Great  Britain,  MS.  Inst.  Cent.  Am.  XVIII, 
73,  Moore,  Dig.,  VI,  432;  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Morton, 
Minister  to  France,  No.  698,  Feb.  28,  1885,  concerning  the  possible  transfer 
by  Haiti  of  the  Mole  St.  Nicholas  or  the  whole  Island  of  Tortuga  to  France, 
MS.  Inst.  France,  XXI,  172,  Moore,  Dig.,  VI,  432;  Mr.  Adee,  Acting  Secy,  of 
State,  to  Mr.  Beaupre,  Minister  to  Venezuela,  telegram,  Aug.  6,  1908,  For. 
Rel.  1909,  632,  concerning  the  Netherlands  and  Venezuela. 

Concerning  the  possible  transfer  of  Cuba  by  Spain  to  a  foreign  State  see 
Intervention,  supra,  §  79;  also  Mr.  Van  Buren,  Secv.  of  State,  to  Mr.  Van 
Ness,  Minister  to  Spain,  No.  2,  Oct.  2,  1829,  MS.  Inst.  U.  S.  Ministers,  XIII, 
19,  Moore,  Dig.,  VI,  448;  Same  to  Same,  Oct.  13,  1830,  MS.  Inst.  U.  S.  Min- 
isters, XIII,  184,  Moore,  Dig.,  VI,  449;  Mr.  Forsvth,  Secy,  of  State,  to  Mr. 
Vail,  Minister  to  Spain,  No.  2,  July  15,  1840,  MS.  Inst.  Spain,  XIV,  111, 
Moore,  Dig.,  VI,  450;  Mr.  Claj^ton,  Secy,  of  State,  to  Mr.  Barringer,  Minister 
to  Spain,  No.  2,  Aug.  2,  1849,  MS.  Inst.  Spain,  XIV,  295,  Moore,  Dig.,  VI, 
452 ;  Memorandum  of  Mr.  Seward,  Secy,  of  State,  May  7,  1867,  MS.  Notes 
to  Spanish  Legation,  IX,  398,  Moore,  Dig.,  VI,  456;  Mr.  Everett,  Secy,  of 
State,  to  the  Count  Sartiges,  Dec.  1,  1852,  S.  Ex.  Doc.  13,  32  Cong.,  2  Sess., 
15,  Moore,  Dig.,  VI,  460,  461. 

^  "Undoubtedly  as  one  passes  to  the  south  and  the  distance  from  the 
Caribbean  increases,  the  necessity  of  maintaining  the  rule  of  Monroe  becomes 
less  immediate  and  apparent.  But  who  is  com.petent  to  draw  the  line  ?  Who 
will  say,  'to  this  point  the  rule  of  Monroe  should  apply;  beyond  this  point 
it  should  not'?  Who  will  say  that  a  new  national  force  created  beyond  any 
line  that  he  can  draw  will  stay  beyond  it  and  will  not  in  the  long  course  of 
time  extend  itself  indefinitely?"  Elihu  Root,  "The  Real  Monroe  Doctrine", 
Proceedings  Am.  Soc.  Int.  L.,  1914,  VIII,  6,  20.  See,  also,  Archibald  C. 
Coolidge,  The  United  States  as  a  World  Power,  112-113,  citirig  an  important 
paper  bv  Capt.  A.  T.  Mahan  on  the  Monroe  Doctrine,  in  National  Review, 
1903,  Vol.  XL,  p.  871. 

It  may  be  observed  that  by  a  treaty  concluded  Aug.  10,  1877,  Sweden 
ceded  to  France  the  Island  of  St.  Bartholomew.  For  the  text  of  the  agree- 
ment, see  Nouv.  Rec.  Gen.,  2  ser.,  IV,  366. 

141 


§  90]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

been  expressed  lest  Japan  sought  indirectly  lodgment  in  territory 
adjacent  to  Magdalena  Bay/  adopted  a  resolution  declaring 

That  when  any  harbor  or  other  place  in  the  American 
continents  is  so  situated  that  the  occupation  thereof  for  naval 
or  military  purposes  might  threaten  the  communications  or 
the  safety  of  the  United  States,  the  Government  of  the  United 
States  could  not  see  without  grave  concern  the  possession  of 
such  harbor  or  other  place  by  any  corporation  or  association 
which  has  such  a  relation  to  another  Government,  not  Am- 
erican, as  to  give  that  Government  practical  power  or  control 
for  naval    or  military  purposes.^ 

It  is  believed  that  this  resolution  gives  expression  to  a  moderate 
and  reasonable  enunciation  of  the  principle  of  self-defense.  While 
it  was  doubtless  regarded  in  certain  quarters  as  a  novel  application 
of  the  Monroe  Doctrine  on  account  of  the  warning  sought  to  be 
given  to  an  Asiatic  State,  the  resolution  by  its  comprehensive 
terms,  embracing  any  foreign  government  "not  American"  did 
not  advance  any  new  legal  theory.  It  must  be  recalled  that 
it  was  against  the  territorial  aggrandizement  of  Russia  as  an 
Asiatic  power  that  the  United  States  directed  its  earliest  protest 
respecting  colonization. 

It  seems  important  to  observe  that  the  opposition  of  the  United 
States  to  territorial  aggrandizement  has  long  since  ceased  to  be 
based  on  the  theory  that  the  American  continents  contain  no  lands 
not  subjected  to  rights  of  sovereignty  and  so  not  open  to  occupa- 
tion as  a  technical  mode  of  creating  or  perfecting  rights  of  property 
and  control  therein.  For  that  reason  the  term  "  occupation  "  as  em- 
ployed by  the  United  States  in  current  diplomatic  correspondence 
respecting  the  Monroe  Doctrine,  has  merely  its  colloquial  significa- 
tion. Objections  to  acquisitions  by  non-American  States  rest 
simply  upon  the  ground  that  they  jeopardize  the  safety  of  the 

^  See,  in  this  connection,  message  from  President  Taft  to  the  Senate,  May  23, 
1912,  transmitting  in  response  to  Senate  Resolution  of  May  16,  1912,  copies 
of  correspondence  relative  to  the  American  syndicate  interested  in  lands  on 
Magdalena  Bay,  Senate  Doc.  No.  694,  62  Cong.,  2  Sess. 

2  Senate  Resolution  371,  adopted  Aug.  2,  1912,  Cong.  Record,  Vol.  48, 
Part  10,  10045-10046.  In  urging  the  adoption  of  the  resolution,  which  he 
had  introduced.  Senator  Lodge  declared,  Aug.  2,  1912 :  "This  resolution  rests 
on  a  generally  accepted  principle  of  the  law  of  nations,  older  than  the  Monroe 
Doctrine.  It  rests  on  the  principle  that  every  nation  has  a  right  to  protect 
its  own  safety,  and  that  if  it  feels  that  the  possession  by  a  foreign  power,  for 
military  or  naval  purposes,  of  any  given  harbor  or  place  is  prejudicial  to  its 
safety,  it  is  its  duty  as  well  as  its  right  to  interfere.  .  .  .  The  resolution  is 
merely  a  statement  of  policy,  allied  to  the  Monroe  Doctrine,  of  course,  but 
not  necessarily  dependent  upon  it  or  growing  out  of  it."     Id.,  10045. 

142 


BRITISH  GUIANA-VENEZUELAN  BOUNDARY  DISPUTE      [§91 

United  States,  or  incidentally  constitute  an  encroachment  upon 
the  rights  of  an  existing  territorial  sovereign. 

(2) 
§  91.   The  British  Guiana-Venezuelan  Boundary  Dispute 

Where  any  acts  are  deemed  to  amount  to  encroachment  upon 
or  interference  with  the  territorial  integrity  of  an  American  State 
against  its  will,  the  United  States  appears  to  be  alert  in  making 
felt  its  opposition.  The  British  Guiana- Venezuelan  boundary 
dispute  reached  a  stage  in  1895,  which  offered  occasion  for  the 
United  States  to  proclaim  its  theory  and  act  upon  it. 

Secretary  Olney,  in  instructions  of  July  20,  1895,  to  ]Mr.  Bayard, 
American  Ambassador  at  London,  adverted  to  the  very  large 
extent  of  the  area  in  dispute,  the  disparity  in  the  strength  of  the 
opposing  claimants,  the  duration  of  the  controversy  for  more  than 
half  a  century,  during  which  Venezuela  had  sought  in  vain  to 
establish  a  boundary  by  agreement,  the  long  and  futile  efforts 
of  that  State  to  secure  an  agreement  to  arbitrate,  save  upon  con- 
dition that  it  renounce  a  substantial  part  of  its  claim,  and  to  the 
fact  that  by  the  frequent  interposition  of  its  good  offices  to  facili- 
tate arbitration,  and  by  other  acts,  the  United  States  had  made 
clear  to  Great  Britain  that  the  controversy  was  one  in  which  both 
its  honor  and  interests  were  involved,  and  the  continuance  of 
which  it  could  not  regard  with  indifference.^  He  declared  that  a 
State  possessed  a  right  of  interposition  in  a  controversy  between 
two  others,  according  to  international  law,  when  the  contemplated 
action  of  either  of  them  was  a  "serious  and  direct  menace  to  its 
own  integrity,  tranquillity,  or  welfare."  He  maintained  that  the 
Venezuelan  boundary  controversy  was  within  the  scope  and  spirit 
of  the  rule  laid  down  in  the  Monroe  Doctrine.  He  emphasized 
a  sharp  differentiation  between  American  and  European  interests.^ 
He  stated  that  the  safety  and  welfare  of  the  United  States  were 
so  related  to  the  maintenance  of  the  independence  of  every  Ameri- 

^  Mr.  Olney,  Secy,  of  State,  to  Mr.  Bayard,  Ambassador  to  Great  Britain, 
July  20,  1895,  For.  Rel.  1895,  I,  545,  Moore,  Dig.,  VI,  535. 

2  In  this  connection  he  said:  "That  distance  and  three  thousand  miles  of 
intervening  ocean  make  any  permanent  poUtical  union  between  an  European 
and  an  American  State  unnatural  and  inexpedient  will  hardly  be  denied." 
Lord  Salisbury,  British  Foreign  Secretary,  declared  in  reply  that  Her  Majesty's 
Government  were  prepared  emphatically  to  deny  this  proposition  on  behalf 
of  both  the  British  and  American  people  who  were  subject  to  the  British 
Crown,  and  maintained  "that  the  union  between  Great  Britain  and  her  terri- 
tories in  the  Western  Hemisphere  is  both  natural  and  expedient."  Com- 
munication to  Sir  JuUan  Pauncefote,  Nov.  26,  1895,  For.  Rel.  1895,  I,  567, 
Moore,  Dig.,  VI,  559. 

143 


§  91]  RIGHTS    OF   POLITICAL    INDEPENDENCE 

can  State  as  against  European  power,  as  to  justify  and  require  the 
interposition  of  the  United  States  whenever  that  independence 
was  endangered.  He  declared  that  the  United  States  was  prac- 
tically sovereign  on  the  American  continent,  and  its  fiat  law  upon 
the  subjects  to  which  it  confined  its  interposition,  and  that  because, 
in  addition  to  all  other  grounds,  its  infiniie  resources  combined 
with  its  isolated  position  rendered  it  master  of  the  situation  and 
practically  invulnerable  as  against  any  or  all  other  powers.  The 
advantages  of  that  superiority  would,  he  contended,  be  at  once 
imperiled  if  the  principle  were  admitted  that  European  powers 
might  convert  American  States  into  colonies  or  provinces  of  their 
own.^  He  adverted  to  the  loss  of  prestige,  of  authority  and  of 
weight  in  the  councils  of  the  family  of  nations,  as  among  the  con- 
sequences which  the  United  States  would  thereby  suffer.  He  con- 
tended that  there  was  a  doctrine  of  American  public  law,  well 
founded  in  principle  and  abundantly  sanctioned  by  precedent, 
which  entitled  and  required  the  United  States  to  treat  as  an  in- 
jury to  itself  the  forcible  assumption  by  a  European  power  of 
political  control  over  an  American  State.  Being  entitled,  he  said, 
to  resent  and  resist  any  sequestration  of  Venezuelan  soil  by  Great 
Britain,  the  United  States  was,  he  added,  necessarily  entitled  to 
know  whether  such  sequestration  had  occurred  or  was  then  going 
on,  and  to  have  such  fact  ascertained  by  arbitration  of  the  entire 
controversy^,  without  the  inequitable  conditions  demanded  by 
Great  Britain.^ 

1  He  said  in  this  connection :  "The  principle  would  be  eagerly  availed  of, 
and  every  power  doing  so  would  immediately  acquire  a  base  of  military  opera- 
tions against  us.  What  one  power  was  permitted  to  do  could  not  be  denied 
to  another,  and  it  is  not  inconceivable  that  the  struggle  now  going  on  for  the 
acquisition  of  Africa  might  be  transferred  to  South  America.  If  it  were,  the 
weaker  countries  would  unquestionably  be  soon  absorbed,  while  the  ultimate 
result  might  be  the  partition  of  all  South  America  between  the  various  Euro- 
pean powers.  The  disastrous  consequences  to  the  United  States  of  such  a 
condition  of  things  are  obvious."    For.  Rel.  1895,  I,  558. 

^  In  an  earlier  portion  of  his  communication,  Mr.  Olnej'^  quoted  a  note  of 
Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Baker,  Minister  to  Venezuela, 
No.  203,  Jan.  31,  1883,  MS.  Inst.  Venezuela,  III,  280,  to  the  effect  that  the 
United  States  regarded  such  questions  as  the  dispute  relating  to  the  boundary 
of  Venezuela,  "  as  essentially  and  distinctively  American",  and  that  it  would 
always  "prefer  to  see  such  contentions  adjusted  through  the  arbitrament  of 
an  American  rather  than  an  European  power."  He  added  later:  "Another 
development  of  the  rule,  though  apparently  not  necessarily  required  by  either 
its  letter  or  its  spirit,  is  found  in  the  objection  to  arbitration  of  South  American 
controversies  by  an  European  power.  American  questions,  it  is  said,  are  for 
American  decision,  and  on  that  ground  the  United  States  went  so  far  as  to 
refuse  to  mediate  in  the  war  between  Chile  and  Peru  jointly  with  Great  Britain 
and  France."  In  his  response  of  Nov.  26,  1895,  Lord  Salisbury'  declared  that 
such  a  principle  "even  if  it  receive  any  countenance  from  the  language  of 
President  Monroe  (which  it  does  not),  cannot  be  sustained  by  any  reasoning 
from  the  law  of  nations." 

144 


BRITISH  GUIANA-VENEZUELAN  BOUNDARY  DISPUTE     [§  91 

Those  conditions  would  amount  in  substance,  he  declared,  to 
an  invasion  and  conquest  of  Venezuelan  territory,  and  ought  not 
to  be  assented  to  by  the  United  States.  He  concluded  with  the 
declaration  that  Great  Britain's  assertion  of  title  to  the  disputed 
territory,  together  with  her  refusal  to  have  that  title  investigated, 
constituted  a  substantial  appropriation  of  the  territory  to  her 
own  use,  and  required  that  protest  be  given  that  the  transaction 
would  be  regarded  as  injurious  to  the  United  States.  The  Ameri- 
can Ambassador  at  London  was  instructed  to  ask  for  definite 
decision  upon  the  point  whether  Great  Britain  would  consent  or 
would  decline  to  submit  the  Venezuelan  boundary  question  in 
its  entirety  to  impartial  arbitration.^ 

In  his  reply,  Lord  Salisbury,  British  Foreign  Secretary,  declared 
that  he  was  not  aware  that  the  ^lonroe  Doctrine  had  ever  before 
been  advanced  on  behalf  of  the  United  States  in  any  wTitten  com- 
munication addressed  to  the  Government  of  another  nation.^  Ad- 
verting to  the  real  dangers  against  which  President  Monroe  had 
thought  it  right  to  guard,  he  contended  that  they  had  no  relation 
to  the  existing  state  of  things.  The  controversy  with  Venezuela 
was  one,  he  said,  with  which  the  United  States  had  no  apparent 
practical  concern,  and  which  had  nothing  to  do  with  any  of  the 
questions  dealt  with  by  President  Monroe.^  He  stated  that  if  the 
Government  of  the  United  States  would  not  control  the  conduct 
of  the  States  of  Central  and  South  America,  it  could  not  under- 
take to  protect  them  from  the  consequences  attaching  to  any  mis- 
conduct of  which  they  might  be  guilty  towards  other  nations.  He 
dwelt  upon  the  difficulties  of  arbitration  as  a  mode  of  adjusting 
international  disputes.  Admitting  the  right  of  the  United  States 
to  interpose  in  any  controversy  by  which  its  own  interests  were 
affected,  and  to  judge  of  whether  those  interests  were  touched 
and  of  the  measure  to  which  they  should  be  sustained,  he  denied 
that  the  LT nited  States  was  entitled  to  affirm  as  a  universal  proposi- 
tion, with  reference  to  a  number  of  independent  States  for  whose 
conduct  it  assumed  no  responsibility,  that  its  interests  were  neces- 

1  It  was  added  that  a  decision  to  decline  such  arbitration  would,  in  the  judg- 
ment of  the  President,  be  calculated  greatly  to  embarrass  the  future  relations 
between  the  United  States  and  Great  Britain. 

2  Communication  to  Sir  Julian  Pauncefote,  British  Ambassador  at  Washing- 
ton, Nov.  26,  1895,  For.  Rel.  1895,  I,  563,  Moore,  Dig.,  VI,  559. 

*  He  said  in  this  connection :  "It  is  not  a  question  of  the  colonization  bj^  a 
European  power  of  any  portion  of  America.  It  is  not  a  question  of  the  im- 
position upon  the  communities  of  South  America  of  any  sj-stem  of  government 
devised  in  Europe.  It  is  simply  the  determination  of  the  frontier  of  a  British 
possession  which  belonged  to  the  Throne  of  England  long  before  the  Republic 
of  Venezuela  came  into  existence." 

145 


§  91]  RIGHTS   OF  POLITICAL   INDEPENDENCE 

sarily  concerned  in  whatever  might  befall  those  States  simply  be- 
cause of  their  situation  in  the  Western  Hemisphere. 

He  declared  that  the  British  Government  fully  concurred  with 
the  view  apparently  entertained  by  President  INIonroe  that  any 
disturbance  of  the  existing  territorial  distribution  in  the  Western 
Hemisphere  on  the  part  of  any  European  State  would  be  a  highly 
inexpedient  change,  but  were  not  prepared  to  admit  that  the  recog- 
nition of  that  expediency  was  clothed  with  the  sanction  which 
belongs  to  a  doctrine  of  international  law,  or  that  the  interests 
of  the  United  States  were  necessarily  concerned  in  every  frontier 
dispute  which  might  arise  between  any  two  of  the  States  possess- 
ing dominion  in  the  Western  Hemisphere.  Still  less,  he  said, 
could  his  Government  accept  the  doctrine  that  the  United  States 
was  entitled  to  claim  that  the  process  of  arbitration  be  applied 
to  any  demand  for  the  surrender  of  territory  which  one  of  those 
States  might  make  against  another.^ 

The  result  was  significant.  President  Cleveland,  in  a  special 
message  of  December  17,  1895,  expressing  dissatisfaction  with 
the  British  reply,  recommended  the  appropriation  for  the  expenses 
of  a  commission  to  be  appointed  by  the  Executive,  which  should 
investigate  and  report  upon  the  boundary  dispute.  He  declared 
that  when  such  report  was  made  and  accepted,  it  would,  in  his 
opinion,  be  the  duty  of  the  United  States  to  resist  by  every  means 
in  its  power  as  a  willful  aggression  upon  its  rights  and  interests, 
the  appropriation  by  Great  Britain  of  any  lands,  or  the  exercise 
of  governmental  jurisdiction  over  any  territory  which  after  in- 
vestigation the  United  States  would  have  determined  of  right  to 
belong  to  Venezuela.^ 

An  appropriation  was  duly  made,  and  a  commission  appointed, 
which  entered  upon  the  discharge  of  its  duties.^  It  was  saved, 
however,  from  the  necessity  of  making  a  report  by  an  agreement 
concluded  between  Great  Britain  and  Venezuela,  February  2, 
18.97,  to  arbitrate  the  whole  controversy  upon  bases  alike  just  and 
honorable  to  both  the  contestants,  and,  therefore,  satisfactory  to 
the  United  States.^ 

1  See,  also,  Lord  Salisbury,  British  Foreigcn  Secretary,  to  Sir  Julian  Paunce- 
fote,  Nov.  26,  1895,  For.  Rel.  1895,  I,  567,  Moore,  Dig.,  VI,  565,  in  which  the 
technical  and  substantial  aspects  of  the  British  claim  against  Venezuela  were 
discussed . 

2  For.  Rel.  1895, 1,  542,  Moore.  Dig.,  VI,  576.  See,  also.  President  Cleveland, 
Annual  Message,  Dec.  2,  1895,  For.  Rel.  1895,  I,  xxviii,  Moore,  Dig.,  VI,  575. 

3  Act  of  Dec.  21,  1895,  29  Stat.  1.  Cf.  also  Report  of  Mr.  Olnev,  Secy,  of 
State,  to  the  President,  Dec.  7,  1896,  For.  Rel.  1896,  Ixxi.,  Moore,  Dig.,  VI,  580. 

*  Id. ;   also  For.  Rel.  1896,  254-255. 

The  Court  of  Arbitration  composed  of  Professor  de  Martens  of  Russia, 

146 


THREATENED  PERMANENT   OCCUPATION  [§  92 

The  most  important  political  result  of  the  controversy  and  of 
the  mode  of  its  adjustment  was  not  "the  decision  upon  the  ter- 
ritorial question,  but  the  official  adoption  of  the  Monroe  Doc- 
trine by  the  Congress  of  the  United  States,  and  its  explicit  ac- 
ceptance by  the  principal  maritime  power  of  Europe."  ^ 


(3) 

§  92.    Certain  Acts  Involving  or  Threatening  Permanent 
Occupation. 

The  United  States  appears  to  object  to  any  acts  by  a  non- 
American  State  which  are  of  a  character  such  as  to  involve  or 
even  threaten  permanent  occupation  of  American  soil.  Obviously 
the  establishment  of  a  protectorate  falls  within  such  a  category 
and  is,  therefore,  looked  upon  with  distinct  disapproval.^ 

In  1905,  President  Roosevelt  expressed  opinion  that  the  taking 
possession,  even  though  temporarily,  of  the  custom  houses  of  an 
American  insolvent  State  by  a  creditor  State  of  another  continent 
as  a  means  of  collecting  its  debts,  might  well  result  in  a  permanent 
occupation  which  the  United  States  could  not,  in  his  judgment, 
regard  with  unconcern.^ 

as  President,  and  Chief  Justice  Fuller,  Mr.  Justice  Brewer,  Lord  Herschell  and 
Sir  Richard  ColHns,  rendered  a  unanimous  award  Oct.  3,  1899.  See  President 
McKinley,  Annual  Message,  Dec.  5,  1899,  For.  Rel.  1899,  xxxii,  Moore,  Dig., 
VI,  583.     Cf.  also  documents  in  Moore,  Dig.,  VI,  581-583. 

^  J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  251 ;  see,  also, 
John  W.  Foster,  A  Century  of  American  Diplomacy,  468-474 ;  Jolin  H. 
Latane,  Proceedings,  Am.  Soc.  Int.  Law  (1914),  VIII,  i05.  111. 

-  Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Barry,  Minister  to  Spain,  No.  2, 
June  30,  1835,  MS.  Inst.  Spain,  XIV,  70,  Moore,  Dig.,  VI,  442;  Mr.  Bayard, 
Secv.  of  State,  to  Mr.  McLane,  Minister  to  France,  No.  414,  Dec.  21.  1888, 
MS.  Inst.  France,  XXI,  616,  Moore,  Dig.,  VI,  433 ;  Mr.  Cass,  Secy,  of  State, 
to  Mr.  Lamar,  Minister  to  Central  America,  July  25,  1858,  MS.  Inst.  American 
States,  XV,  321,  Moore,  Dig.,  VI,  443 ;  Memorandum  of  Mr.  Seward,  Secy. 
of  State,  May  7,  1867,  MS.  Notes  to  Spanish  Leg.  ;X,  398,  Moore,  Dig.,  VI, 
456 ;  Mr.  Cass,  Secy,  of  State,  to  Mr.  Dodge,  Minister  to  Spain,  No.  66  (con- 
fidential), Oct.  21,  1858,  MS.  Inst.  Spain,  XV,  187,  Moore,  Dig.,  VI,  477; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Phelps,  Minister  to  Great  Britain,  Nov.  23, 
1888,  For.  Rel.  1888,  I,  759-767,  Moore,  Dig.,  Ill,  227,  236. 

The  outbreak  of  the  Civil  War,  and  the  attitude  of  Spain  "through  the 
observance  of  our  blockade  and  the  closing  of  Spanish  ports  to  the  insurgent 
privateers",  may  be  accountable  for  the  fact  that  the  United  States  remained 
content  to  lodge  protests  against  the  Spanish  re-annexation  of  Santo  Domingo, 
1861-1865.  Mr.  Seward,  Secy,  of  State,  to  Mr.  Schurz,  Minister  to  Spain, 
No.  20,  confidential,  Aug.  14,  1861,  MS.  Inst.  Spain,  XV,  287,  Moore,  Dig.,  VI, 
517,  note ;  also  documents  cited  in  Moore,  Dig.,  VI,  515-518. 

3  President  Roosevelt,  message  to  the  Senate,  Feb.  15,  1905,  concerning 
protocol  of  Feb.  7,  1905,  with  the  Dominican  RepubUc,  For.  Rel.  1905,  334, 
335,  and  337,  Moore,  Dig.,  VI,  518,  519,  522-523 ;  also  Same,  Annual  Message, 
Dec.  5,  1905,  For.  Rel.  1905,  xxxiii-xxxv. 

147 


§92]  RIGHTS   OF  POLITICAL   INDEPENDENCE 

It  is  important  to  observe  that  the  United  States  does  not  assert 
the  right  to  interfere  with  attempts  of  non-American  States  to 
resort  to  coercive  action  against  American  States  on  account  of 
their  alleged  contractual  or  tortious  delinquencies,  when  the  steps 
taken  do  not  involve  the  occupation  of  territory.^  Thus  in  1901, 
upon  the  assurance  of  the  German  Government  that  it  had  no 
purpose  or  intention  to  make  even  the  smallest  acquisition  of 
territory  on  the  South  American  continent  or  islands  adjacent 
thereto,  in  connection  with  a  proposed  use  of  force  against  Ven- 
ezuela, as  a  means  of  securing  the  adjustment  of  claims,  Secretary 
Hay  offered  no  objection.^    Likewise  in  1908,  in  response  to  an 

1  "In  popular  discussions  the  position  has  sometimes  been  urged  that  it  is 
a  violation  of  the  Monroe  Doctrine  for  a  European  power  to  employ  force 
against  an  American  republic  for  the  purpose  of  collecting  a  debt  or  satisfying 
a  pecuniary  demand,  no  matter  what  may  have  been  its  origin.  For  this 
supposition  there  appears  to  be  no  published  official  sanction."  J.  B.  Moore, 
Principles  of  American  Diplomacy,  1918,  255-256. 

2  See  memorandum  communicated  by  Mr.  Hay,  Secy,  of  State,  to  the  Ger- 
man Embassy  at  Washington,  Dec.  16,  1901,  in  response  to  the  promemoria  of 
that  Embassy  of  Dec.  11,  1901,  For.  Rel.  1901,  195,  Moore,  Dig.,  VI,  589. 
For  the  text  of  the  promemoria,  cj.  For.  Rel.  1901,  192,  Moore,  Dig.,  VI, 
586. 

In  December,  1902,  Great  Britain  together  with  Italy  and  Germany  block- 
aded certain  Venezuelan  ports  as  a  means  of  enforcing  claims.  The  previous 
month  Lord  Lansdowne,  British  Foreign  Secretary,  instructed  Sir  M.  Herbert, 
British  Ambassador  at  Washington,  to  inform  Secretary  Hay  that  if  Venezuela 
persisted  in  its  refusal  to  offer  reparation  for  its  wrongful  treatment  of  British 
subjects  and  their  property,  coercive  action  against  that  State  was  to  be 
anticipated.  Brit,  and  For.  State  Papers,  XCV,  1081.  On  November  13,  this 
information  was  conveyed  to  Secretary  Hay,  who  stated  in  reply,  that  the 
United  States  Government,  although  regretting  that  European  powers  should 
use  force  against  Central  and  South  American  countries,  could  not  object 
to  the  action  of  the  former  in  taking  steps  to  obtain  redress  for  injuries  suffered 
by  their  subjects,  provided  that  no  acquisition  of  territory  was  contemplated. 
Id.,  1084,  containing  report  of  Sir  M.  Herbert  to  Lord  Lansdowne. 

In  his  Life  and  Letters  of  John  Hay,  Boston,  1915,  Wilham  Roscoe  Thayer 
makes  the  following  statement  with  reference  to  an  occurrence  in  December, 
1902,  and  doubtless  at  the  time  when  the  Venezuelan  ports  were  under  block- 
ade :  "One  day,  when  the  crisis  was  at  its  height,  he  [President  Roosevelt] 
summoned  to  the  White  House,  Dr.  Holleben,  the  German  Ambassador, 
and  told  him  that  unless  Germany  consented  to  arbitrate,  the  American 
squadron  under  Admiral  *Dewey  would  be  given  orders,  by  noon  ten  days 
later,  to  proceed  to  the  Venezuelan  coast  and  prevent  any  taking  possession 
of  Venezuelan  territory.  Dr.  Holleben  began  to  protest  that  his  Imperial 
master,  having  once  refused  to  arbitrate,  could  not  change  his  mind.  The 
President  said  that  he  was  not  arguing  the  question,  because  arguments  had 
already  been  gone  over  until  no  useful  purpose  would  be  served  by  repeating 
them  ;  he  was  simply  giving  information  which  the  Ambassador  might  think 
it  important  to  transmit  to  Berlin.  A  week  passed  in  silence.  Then  Dr. 
Holleben  again  called  on  the  President,  but  said  nothing  of  the  Venezuelan 
matter.  When  he  rose  to  go,  the  President  asked  him  about  it,  and  when  he 
stated  that  he  had  received  nothing  from  his  Government,  the  President  in- 
formed him  in  substance  that,  in  view  of  this  fact,  Admiral  Dewey  would  be 
instructed  to  sail  a  day  earlier  than  the  day  he,  the  President,  had  originally 
mentioned.  Much  perturbed,  the  Ambassador  protested ;  the  President 
informed  him  that  not  a  stroke  of  the  pen  had  been  put  on  paper ;  that  if  the 

148 


PRESIDENT.  ROOSEVELT'S  PROPOSAL  [§  92 

inquiry  from  the  Netherlands,  the  Department  of  State  declared 
that  the  Government  of  the  United  States  did  not  feel  at  liberty 
to  object  to  coercive  measures  to  be  taken  by  the  Netherlands  in 
regard  to  Venezuela  and  which  did  not  involve  "occupation  of 
territory  either  permanent  or  of  such  a  character  as  to  threaten 
permanency."  ^ 

It  should  be  noted,  however,  that  the  gaining  of  actual  control 
of  the  custom  houses  (and  that  possibly  for  an  indefinite  period 
of  time)  of  certain  insolvent  American  States,  has  appeared  at 
times  to  offer  the  sole  means  of  obtaining  satisfaction  of  pecuniary 
claims  of  contractual  origin.  President  Roosevelt,  believing  that 
interference  v\^ith  such  action,  in  the  case  of  the  Dominican 
Republic,  under  cover  of  the  Monroe  Doctrine,  would  place  foreign 
aggrieved  States  in  a  remediless  condition,  and  also  tend  to  deprive 
them  of  possibly  just  rights  of  coercion,  logically  proposed  in 
1905,  as  a  feasible  alternative,  that  the  United  States  be  itself 
allowed  to  collect  the  claims  of  European  States  as  well  as  its 
own.-     The  application  of  this  theory,  through  the  establishment 

Emperor  would  agree  to  arbitrate,  he,  the  President,  would  heartily  praise 
him  for  such  action,  and  would  treat  it  as  taken  on  German  initiative ;  but 
that  within  forty-eight  hours  there  must  be  an  offer  to  arbitrate  or  Dewey 
would  sail  with  the  orders  indicated.  Within  thirty-six  hours  Dr.  Holleben 
returned  to  the  White  House  and  announced  to  President  Roosevelt  that  a 
despatch  had  just  come  from  Berlin,  saying  that  the  Kaiser  would  arbitrate. 
Neither  Admiral  Dewey  (who  with  an  American  fleet  was  then  maneuvering 
in  the  West  Indies)  nor  any  one  else  knew  of  the  step  that  was  to  be  taken ; 
the  naval  authorities  were  merely  required  to  be  in  readiness,  but  were  not 
told  what  for. 

"On  the  announcement  that  Germany  had  consented  to  arbitrate,  the 
President  publicly  complimented  the  Kaiser  on  being  so  stanch  an  advocate 
of  arbitration."     II,  286-288. 

1  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Beaupre,  Minister  to  Venezuela, 
telegram,  Aug.  6,  1908,  For.  Rel.  1909,  632. 

2  In  his  Annual  Message  of  Dec.  5,  1905,  President  Roosevelt  put  the  matter 
thus  :  "  If  a  republic  to  the  south  of  us  commits  a  tort  against  a  foreign  nation, 
such  as  an  outrage  against  a  citizen  of  that  nation,  then  the  Monroe  Doctrine 
does  not  force  us  to  interfere  to  prevent  punishment  of  the  tort,  save  to  see 
that  the  punishment  does  not  assume  the  form  of  territorial  occupation  in  any 
shape.  The  case  is  more  difficult  when  it  refers  to  a  contractual  obligation. 
Our  own  Government  has  always  refused  to  enforce  such  contractual  obliga- 
tions on  behalf  of  its  citizens  by  an  appeal  to  arms.  It  is  much  to  be  wished 
that  all  foreign  governments  would  take  the  same  view.  But  thej'  do  not ; 
and  in  consequence  we  are  liable  at  any  time  to  be  brought  face  to  face  with 
disagreeable  alternatives.  On  the  one  hand,  this  country  would  certainly 
decline  to  go  to  war  to  prevent  a  foreign  government  from  collecting  a  just 
debt ;  on  the  other  hand,  it  is  very  inadvisable  to  permit  any  foreign  power 
to  take  possession,  even  temporarily,  of  the  custom  houses  of  an  American 
Republic  in  order  to  enforce  the  payment  of  its  obligations  ;  for  such  temporary 
occupation  might  turn  into  a  permanent  occupation.  The  only  escape  from 
these  alternatives  may  at  any  time  be  that  we  must  ourselves  undertake  to 
bring  about  some  arrangement  by  which  so  much  as  possible  of  a  just  obliga- 
tion shall  be  paid.  It  is  far  better  that  this  country  should  put  through  such 
an  arrangement,  rather  than  allow  any  foreign  country  to  undertake  it.     To 

149 


§  92]  RIGHTS    OF   POLITICAL    INDEPENDENCE 

of  a  virtual  receivership,  proved  to  be  of  practical  value  as  a 
means  both  of  avoiding  friction  between  the  United  States  and 
European  powers,  and  of  conserving  available  assets  for  the  benefit 
of  all  concerned.^  It  is  believed  that  the  financial  protection 
which  by  convention  it  has  established  over  Haiti,  as  well  as  the 
Dominican  Republic,  has  served  to  avert  controversies  otherwise 
to  have  been  anticipated,  unless  the  United  States  was  prepared 
to  tolerate  not  merely  the  use  of  non-American  force,  but  rather 
those  forms  of  it  which  involved  acts  threatening  the  permanent 
occupation  of  American  soil.^ 

do  so  insures  the  defaulting  republic  from  having  to  pay  debts  of  an  improper 
character  under  duress,  while  it  also  insures  honest  creditors  of  the  republic 
from  being  passed  by  in  the  interest  of  dishonest  or  grasping  creditors.  More- 
over, for  the  United  States  to  take  such  a  position  offers  the  only  possible 
way  of  insuring  us  against  a  clash  with  some  foreign  power.  The  position  is, 
therefore,  in  the  interest  of  peace  as  well  as  in  the  interest  of  justice."  For. 
Rel.  1905,  xxxiv-xxxv.     See,  also,  id.,  xxxvi-xxxvii. 

1  See  convention  between  the  United  States  and  the  Dominican  Republic 
concluded  Feb.  8,  1907,  Malloy's  Treaties,  I,  418;  and  with  respect  to  the 
convention  Jacob  B.  Hollander,  in  Am.  J.,  I,  287.  Also  President  Roosevelt, 
message  to  the  Senate,  Feb.  15,  1905,  Moore,  Dig.,  VI,  518.     C/.,  supra,  §  21. 

It  should  be  observed  that  in  the  latter  message.  President  Roosevelt  ad- 
verted to  the  decision  of  the  Tribunal  at  the  Hague  in  the  Venezuelan  cases 
pursuant  to  conventions  of  1903,  Malloy's  Treaties,  II,  1872,  whereby  the 
powers  which  had  blockaded  Venezuela  were  acknowledged  to  have  acquired 
by  so  doing,  a  preference  in  the  payment  of  their  claims  over  the  non-blockad- 
ing claimant  powers,  of  which  the  United  States  was  one.  For  the  text  of 
the  award,  see  Malloy's  Treaties,  II,  1878. 

In  the  judgment  of  the  President,  it  evidently  appeared  to  be  difficult  to 
draw  an  exact  line  between  acts  which,  by  virtue  of  the  decision,  a  creditor 
State  might  reasonably  commit  without  violating  international  law,  and  those 
which  the  United  States,  under  the  theory  of  the  Monroe  Doctrine,  might  feel 
itself  obliged  to  oppose.  He  did  not  maintain  that  such  opposition  would, 
when  reasonably  applied,  amount  to  internationally  illegal  conduct.  But 
he  perceived  that  it  might  be  so  regarded  abroad,  especially  when  the  attempt 
to  thwart  acts  involving  permanent  occupation  occurred  at  an  early  stage 
of  the  proceeding  directed  against  the  debtor  State.  His  purpose  was,  there- 
fore, to  avoid  such  a  dilemma  by  means  of  the  proposal  which  he  offered. 

2  See  treaty  between  the  United  States  and  Haiti  of  Sept.  16,  1915,  U.  S. 
Treaty  Series' No.  623;  ^m.  J.,  X,  Supp.,  234;  39  Stat.  II,  1654. 

Declared  Mr.  Root,  Secy,  of  State,  in  an  address  before  the  New  England 
Society  in  1904 :  "  If  we  are  to  maintain  this  doctrine  [that  of  Monroe],  which 
is  vital  to  our  national  life  and  safety,  at  the  same  time  when  we  say  to  the 
other  powers  of  the  world,  '  You  shall  not  push  your  remedies  for  wTong  against 
these  republics  to  the  point  of  occupying  their  territory,'  we  are  bound  to  say 
that  whenever  the  wrong  cannot  be  otherwise  redressed  we  ourselves  will  see 
that  it  is  redressed."  After  quoting  the  foregoing  utterance,  Mr.  Knox,  Secv. 
of  State,  declared  in  January,  1912  :  "  It  appears  to  me  evident  that  there  is 
one  certain  deduction  from  the  premises,  and  that  is  that  the  best  way  to  avoid 
the  difficulties  occasionally  arising  out  of  any  responsibilities  which  this  doc- 
trine in  certain  of  its  aspects  may  seem  to  impose,  is  to  assist  the  less  fortunate 
American  Republics  in  conducting  their  own  affairs  in  such  a  way  that  those 
difficulties  should  not  be  liable  to  arise.  The  most  effective  way  to  escape  the 
logical  consequences  of  the  Monroe  Doctrine  is  to  help  them  to  help  them- 
selves. Assuming  the  correctness  of  Mr.  Root's  corollary,  it  is  our  duty,  to 
ourselves  and  to  them,  to  cooperate  in  preventing,  where  possible,  specific 
conditions  where  we  might  have  to  become  in  too  great  a  measure  accountable. 

150 


OPPOSITION  TO  CERTAIN  ACTS  [§  93 

g 

§  93.    Opposition  to  Interference  with  Political  Independ- 
ence. 

The  United  States  asserts  the  right  to  oppose  generally  the  at- 
tempt of  any  non-American  power  to  interfere  with  the  political 
independence  of  any  American  State.  This  assertion,  apart  from 
its  relation  in  any  particular  case  to  the  requirements  of  self- 
defense  which  may  confront  the  United  States,  finds  justification 
on  those  grounds  which  normally  excuse  intervention ;  for  it  is 
simply  the  manifestation  of  the  propriety  of  interference  with 
acts  themselves  essentially  illegal  and  oppressive. 

Objection  is  thus  made  to  the  assertion  of  non-American  in- 
fluence to  change  the  form  of  an  existing  American  Republic,  or  to 
control  the  free  will  of  its  people.^  While  there  appears  at  the 
present  time  little  danger  of  an  attempt  from  another  continent 
to  impose  a  repressive  or  undemocratic  system  of  government 
upon  an  American  State,  such  efforts  were  made  long  after  Presi- 
dent ^Monroe's  message  of  1823. 

Between  1862  and  1867,  France  intervened  in  Mexico,  making 
the  attempt  to  suppress  by  force  republican  government  in  that 
State  and  to  establish  a  monarchy  therein.^     This  conduct,  as  is 

We  diminish  our  responsibilities  in  proportion  as  we  bring  about  improved 
conditions.  Like  an  insurance  risk,  our  risk  decreases  as  the  conditions  to 
which  it  pertains  are  improved."  Address  at  New  York,  Jan.  19,  1912,  before 
New  York  State  Bar  Association,  on  "The  Monroe  Doctrine  and  Some  Inci- 
dental Obligations  in  the  Zone  of  the  Caribbean." 

^  Mr.  Seward,  Secv.  of  State,  to  Mr.  Kilpatrick,  Minister  to  Chile,  No.  9. 
June  2,  1866,  MS.  Inst.  Chile,  XV,  3.33;  Dip.  Cor.  1866,  II,  413,  Moore,  Dig., 
VI,  445 ;  Mr.  Cass,  Secv.  of  State,  to  Mr.  Lamar,  Minister  to  Central  America, 
July  25,  1858,  MS.  Inst.  American  States,  XV,  321,  Moore,  Dig.,  VI,  443; 
Mr.  Buchanan,  Secv.  of  State,  to  Mr.  Livingston,  Minister  to  Ecuador,  May  13, 
1848,  MS.  Inst.  Ecuador,  I,  3,  Moore,  Dig.,  VI.  473;  Mr.  Buchanan,  Secy,  of 
State,  to  Mr.  Appleton,  Minister  to  Bolivia,  No.  2,  June  1,  1848,  MS.  Inst. 
Bolivia,  I,  2,  Moore,  Dig.,  VI,  436;  Mr.  Buchanan,  Secy,  of  State,  to  Mr. 
Hise,  Minister  to  Central  America,  June  3,  1848,  H.  Ex.  Doc.  75,  31  Cong., 
1  Sess.,  92-96,  Moore,  Dig.,  VI,  442;  Mr.  Hav,  Secy,  of  State,  to  Mr.  Powell, 
Minister  to  Haiti,  May  18,  1900,  For.  Rel.  1900,  712,  Moore,  Dig.,  VI,  476; 
Mr.  Olnev,  Secv.  of  State,  to  Mr.  Bavard,  Ambassador  to  Great  Britain, 
July  20,  1895,  For.  Rel.  1895,  I,  545,  Moore,  Dig.,  VI,  535,  549;  Mr.  Foster, 
Secy,  of  State,  to  Mr.  Lincoln,  Minister  to  Great  Britain,  Feb.  8,  1893,  For. 
Rel.  1893,  313,  Moore,  Dig.,  Ill,  2.38,  241. 

2  See  communications  from  Mr.  Seward,  Secy,  of  State,  and  other  docu- 
ments in  Moore,  Dig.,  VI,  488-507,  especially  Mr.  Seward  to  Mr.  Motlev, 
American  Minister  to  Austria,  No.  41,  Sept.  11,  1863,  Dip.  Cor.  1863,  II,  929; 
same  to  Mr.  Dajiion,  American  Minister  to  France,  No.  400,  Sept.  21,  1863, 
id.,  703 ;  Same  to  Same,  No.  406,  Sept.  26,  1863,  id.,  709;  Same  to  Same,  No. 
417,  Oct.  23,  1863,  id.,  726;  Same  to  Mr.  Bigelow,  American  Minister  to 
France,  No.  300,  Nov.  6,  1865,  MS.  Inst.  France,  XVII,  467 ;  Same  to  Same, 
No.  332,  Dec.  16,  1865,  House  Ex.  Doc.  No.  73,  .39  Cong.,  1  Sess.,  Part  2,  p.  495 ; 
Same  to  the  Marquis  de  Montholon,  French  Minister,  Feb.  12,  1866,  id.,  548. 

Also  address  of  James  M.  Callahan,  Proceedings,  Am.  Soc.  of  Int.  Law,  IV, 

151 


§93]  RIGHTS    OF   POLITICAL   INDEPENDENCE 

well  known,  ultimately  aroused  such  opposition  on  the  part  of  the 
United  States  as  to  bring  about  the  evacuation  of  French  troops 
and  the  reestablishment  of  a  republican  government.^  It  should 
be  observed  that  American  interference  was  attributable  not  only 
to  sympathy  for  the  oppressed  people  of  a  neighboring  country, 
but  also  to  the  requirements  of  the  defense  of  the  United  States.^ 


Modes  of  Applying  the  Monroe  Doctrine 

(1) 
§  94.   Avoidance  of  Concerted  Action. 

In  the  process  of  its  own  defense  a  State  may  or  may  not  deem 
it  necessary  to  secure  the  aid  of  its  neighbors  or  friendly  powers 
of  distant  continents.  It  may  be  reluctant,  moreover,  to  yield  by 
convention  or  alliance  to  any  foreign  States  the  right  to  determine 
under  what  circumstances  the  requirements  of  its  own  safety  de- 
mand recourse  to  a  particular  form  of  conduct.^ 

The  United  States  has  generally  avoided  concerted  action  with 
European  States  in  proceedings  directed  against  or  especially 
pertaining  to  States  of  the  American  continents.    Thus  in  1852, 

59,  92-105;  George  F.  Tucker,  The  Monroe  Doctrine,  Boston,  1885,  Chap. 
VII;  Herbert  Kraus,  Die  Monroedoktrin,  Berlin,  1913,  123-128,  and  docu- 
ments cited. 

1  That  the  United  States  for  some  time  remained  a  passive  spectator  of 
French  intervention  in  Mexico  may  be  attributed  partly  to  the  assurances 
that  France  "did  not  intend  to  permanently  occupy  or  dominate  in  Mexico, 
and  that  she  should  leave  to  the  people  of  Mexico  a  free  choice  of  institutions 
of  government."  Mr.  Seward,  Secy,  of  State,  to  Mr.  Motley,  Minister  to 
Austria,  No.  41,  Sept.  11,  1863,  Dip.  Cor.  1863,  II,  929,  Moore,  Dig.,  VI,  491 ; 
also  to  the  fact  that  the  United  States  was  engaged  in  a  civil  war  the  suc- 
cessful prosecution  of  which  called  for  the  exercise  of  all  available  military  and 
naval  force,  and  rendered  necessary  the  avoidance  of  serious  differences  with 
foreign  States.  See  confidential  communication  of  Mr.  Seward,  Secy,  of 
State,  to  Mr.  Motley,  Minister  to  Austria,  April  14,  1864,  MS.  Inst.  Austria, 
I,  215,  Moore,  Dig.,  VI,  498,  note. 

2  Said  Mr.  Seward,  Secretary  of  State,  in  the  course  of  a  communication 
to  the  French  Minister,  Dec.  6,  1865:  "The  real  cause  of  our  national 
discontent  is,  that  the  French  army  which  is  now  in  Mexico  is  invading  a 
domestic  republican  government  there  which  was  established  by  her  people, 
and  with  whom  the  United  States  sympathize  most  profoundly,  for  the  avowed 
purpose  of  suppressing  it  and  establishing  upon  its  ruins  a  foreign  monarchical 
government,  whose  presence  there,  so  long  as  it  should  endure,  could  not  but 
be  regarded  by  the  people  of  the  United  States  as  injurious  and  menacing  to 
their  own  chosen  and  endeared  republican  institutions."  H.  Ex.  Doc.  73, 
39  Cong.,  1  Sess.,  II,  347,  Moore,  Dig.,  VI,  500,  501. 

Concerning  the  prevention  by  the  United  States  in  1866,  of  Austrian  aid  to 
Maximilian,  see  Moore,  Dig.,  VI,  505-507,  and  documents  there  cited. 

'See,  in  this  connection,  Elihu  Root,  "The  Real  Monroe  Doctrine",  Am. 
Soc.  of  Int.  Law,  Proceedings,  VIII,  6,  19-20. 

152 


AVOIDANCE   OF  CONCERTED  ACTION  [§  94 

it  refused  to  enter  into  an  arrangement  with  Great  Britain,  France 
and  Spain  for  the  neutralization  of  Cuba.^  In  1861,  it  dedined 
to  join  those  powers  in  a  combined  movement  upon  Mexico.^  In 
1881,  it  was  unwilling  to  unite  with  France  and  Great  Britain  in 
order  to  bring  to  a  close  a  war  between  Chile  and  Peru.^  In  1886, 
it  was  indisposed  to  act  in  concert  with  certain  European  powers 
against  Venezuela.^ 

On  the  other  hand,  the  United  States,  in  cooperation  with 
Great  Britain  and  France,  intervened  in  1850-1851,  in  order  to 
bring  about  peace  between  the  Empire  of  Haiti  and  the  Dominican 
Republic.^ 

By  the  Clayton-Bulwer  Treaty,  concluded  April  19,  1850,  the 
United  States  and  Great  Britain  agreed  to  impose  rigid  restric- 
tions on  their  freedom  of  action  with  reference  to  Central  America.^ 
Each  party  undertook  not  to  obtain  or  maintain  for  itself  any  ex- 
clusive control  over  a  proposed  trans-Isthmian  canal,  not  to  erect 
or  maintain  any  fortifications  commanding  it  or  in  the  vicinity 
thereof,  and  not  to  occupy,  fortify  or  colonize,  or  assume,  or  exer- 
cise any  dominion  over  any  part  of  Central  America^  Both  Gov- 
ernments agreed  to  accord  protection  to  persons  and  property  in- 
volved in  the  construction  of  the  canal,^  and  they  engaged  to 
"guarantee  the  neutrality"  of  it  upon  its  completion.^  Declaring 
that  their  purpose  was  not  only  to  accomplish  a  particular  object, 
but  also  to  establish  a  general  principle,  they  agreed  to  extend 
their  protection  to  other  practicable  interoceanic  communica- 
tions by  land  and  water  across  the  isthmus. ^° 

The  effect  of  this  treaty  was  to  bind  Great  Britain  not  to  com- 
mit numerous  acts  which  would  have  been  opposed  to  the  theory 
of  the  Monroe  Doctrine,  and  thereby  to  secure  the  cooperation 

1  Mr.  Everett,  Secy,  of  State,  to  the  Count  Sartiges,  Dec.  1,  1853,  Senate, 
Ex.  Doc.  13,  32  Cong.,  2  Sess.,  15,  Moore,  Dig.,  VI,  460. 

2  Mr.  Seward,  Secv.  of  State,  to  Mes.srs.  Tassara,  Mercier,  and  Lord  Lyons, 
Dec.  4,  1861,  H.  Ex.  Doc.  100,  37  Cong.,  2  Sess.,  187,  Moore,  Dig.,  VI,  485. 

3  Mr.  Blaine,  Secv.  of  State,  to  Mr.  Morton,  Minister  to  France,  No.  30, 
Sept.  5,  1881,  For.  Rel.  1881,  426. 

*  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Scott,  Minister  to  Venezuela,  No.  70 
(confidential),  Oct.  14,  1886,  MS.  Inst.  Venezuela,  III,  540,  Moore,  Dig.,  VI, 
532.  Also  Mr.  Fi.sh,  Secy,  of  State,  to  General  Schenck,  Minister  to  Great 
Britain,  No.  5  (confidential),  June  2,  1871,  MS.  Inst.  Great  Britain,  XXII, 
471,  Moore,  Dig.,  VI,  531. 

*  Senate  Ex.  Doc.  No.  113,  32  Cong.,  1  Sess.,  especially  communication  of 
Mr.  Webster,  Secy,  of  State,  to  Mr.  Walsh,  special  agent,  Jan.  18,  1851,  con- 
tained therein,  and  given  in  Moore,  Dig.,  Vl,  509;  also  statement,  id.,  509- 
514,  and  other  documents  there  cited.  See,  also,  Frederic  L.  Paxson,  "A 
Tripartite  Intervention  in  Havti,  1851",  reprinted  from  University  of  Colorado 
Studies,  I,  No.  4,  1904. 

«  Mallov's  Treaties,  I,  659.  ^  Art.  I.  «  Art.  III. 

9  Art.  V.  "  Art.  VIIL 

153 


§  94]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

of  that  State  in  maintaining  it.^  In  view  of  the  ascendancy  of 
Great  Britain  in  the  Isthmus  in  1850,  it  is  beHeved  that  the  Clay- 
ton-Bulwer  Treaty  served  greatly  to  facilitate  the  prevention 
of  the  development  of  a  British  zone  in  Central  America  which 
would  have  closed  the  door  against  the  conclusion  fifty  years  later 
of  any  agreement  permitting  any  other  power  such  as  the  United 
States  to  construct  an  interoceanic  canal. ^ 

There  has  been  no  disposition  on  the  part  of  the  United  States 
to  enter  into  agreements  with  other  States  of  the  Western  Hemi- 
sphere for  the  purpose  of  safeguarding  the  latter  against  acts  which 
the  former  might  regard  as  at  variance  with  the  theory  of  the 
Monroe  Doctrine.^ 

1  In  a  Memorandum  by  Mr.  Olney,  Secy,  of  State,  in  1896,  on  the  Clayton- 
Bulwer  Treaty,  it  was  said :  "The  treaty  is  characterized  by  certain  remark- 
able features.  It  contains  numerous  and  apt  provisions  for  the  protection, 
safety,  and  neutrahzation  of  the  proposed  ship  canal ;  but  it  deals  not  merely 
with  the  particular  subject-matter  which,  in  the  view  of  the  United  States,  led 
to  its  negotiation.  It  also  deals  with  others  of  larger  magnitude,  contemplates 
alliances  with  other  powers,  and  lays  down  general  principles  for  the  future 
guidance  of  the  parties.  The  United  States,  in  entering  upon  the  negotiation, 
aimed  to  accomplish  two  specific  things  —  the  renunciation  by  Great  Britain 
of  its  claim  to  the  Mosquito  Coast,  and  such  a  protectorate  over  the  canal  by 
Great  Britain  jointly  with  the  United  States  as  might  be  expected  to  attract 
to  the  canal  British  capital.  As  the  result  of  the  negotiations,  it  secured  not 
only  the  two  things  specified,  but  also  a  third,  viz..  Great  Britain's  express 
agreement,  so  far  as  Central  America  was  concerned,  to  give  effect  to  the  so- 
called  Monroe  Doctrine.  For  these  advantages  it  rendered,  of  course,  a  con- 
sideration. It  waived  the  Monroe  Doctrine  to  the  extent  of  the  joint  pro- 
tectorate of  the  then  proposed  canal  and  by  Article  VIII  agreed  to  waive  it 
as  respects  all  other  practicable  communications  across  the  Isthmus  connect- 
ing North  and  South  America,  whether  by  canal  or  railway.  In  short,  the 
true  operation  and  effect  of  the  Clayton-Bulwer  Treaty  is  that,  as  respects 
Central  America  generally,  Great  Britain  has  expressly  bound  herself  to  the 
Monroe  Doctrine,  while,  as  respects  all  water  and  land  interoceanic  communi- 
cations across  the  Isthmus,  the  United  States  has  expressly  bound  itself  to  so 
far  waive  the  Monroe  Doctrine  as  to  admit  Great  Britain  to  a  joint  protector- 
ate." Moore,  Dig.,  Ill,  203,  204.  See.  al«n.  Same,  to  Mr.  Bavard.  American 
Ambassador  at  London,  July  20,  1S95,  For.  Rel.  1895,  I,  545,  555,  Moore, 
Dig.,  VI,  535,  550. 

Compare  comment  of  Dr.  Francis  Wharton,  in  Wharton,  Dig.,  I,  168;  also 
that  of  John  W.  Foster,  Century  of  American  Diplomacy,  Boston,  1900,  457- 
458,  where  it  is  said:  "The  treaty  marks  the  most  serious  mistake  in  our 
diplomatic  history,  and  is  the  single  instance,  .since  its  announcement  in  1823, 
of  a  tacit  disavowal  or  disregard  of  the  Monroe  Doctrine,  by  the  admission  of 
Great  Britain  to  an  equal  participation  in  the  protection  and  control  of  a  great 
American  enterprise." 

2  It  will  be  recalled  that  the  Clayton-Bulwer  Treaty  was  superseded  by  the 
Hay-Pauncefote  Treaty  of  Nov.  18,  1901,  permitting  the  construction  of  an 
interoceanic  canal  under  the  auspices  of  the  United  States.  Malloy's  Treaties, 
I,  782. 

^  Declared  President  Wilson  in  an  address  at  Topeka,  Kansas,  Feb.  2,  1916  : 
"We  have  made  ourselves  the  guarantors  of  the  right  of  national  sovereignty 
and  of  popular  sovereignty  on  this  side  of  the  water  in  both  the  continents 
of  the  Western  Hemisphere.  You  would  be  ashamed,  as  I  would  be  ashamed, 
to  withdraw  one  inch  from  that  handsome  guarantee;  for  it  is  a  handsome 
guarantee.  .  .  .     We  have  nothing  to  make  by  allying  ourselves  with  the 

154 


PREVENTIVE  MEASURES  [§  95 

(2) 
§  95.   Preventive  Measures. 

The  United  States  assumes  no  responsibility  for  the  action  of 
other  American  States.^  Nor,  as  has  been  seen,  does  it  assert 
the  right  to  shield  them  from  the  consequences  of  misconduct, 
save  under  circumstances  when  attempts  to  secure  justice  involve 
acts  on  the  part  of  non-American  powers  threatening  permanent 
occupation  of  territory  or  interference  with  rights  of  political  in- 
dependence.^ 

It  was  suggested  by  President  Roosevelt  in  1904,  that  "chronic 
wrongdoing,  or  an  impotence  which  results  in  a  general  loosening 
of  the  ties  of  civilized  society  ",  might  in  America,  as  elsewhere, 
ultimately  require  intervention  by  some  civilized  power,  and  that 
in  the  Western  Hemisphere  the  adherence  of  the  United  States  to 
the  Monroe  Doctrine  might  force  the  United  States,  however  re- 
luctantly, in  flagrant  cases  of  such  wrongdoing  or  impotence,  to 
the  exercise  of  an  international  police  power .^  This  idea  has  doubt- 
less been  influential  in  causing  the  United  States  to  conclude  agree- 
ments designed  to  place  under  its  protection  for  specified  pur- 
other  nations  of  the  Western  Hemisphere  in  order  to  see  to  it  that  no  man 
from  outside,  no  government  from  outside,  no  nation  from  outside  attempts 
to  assert  any  kind  of  sovereignty  or  undue  poKtical  influence  over  the  peoples 
of  this  continent."  President  Wilson's  State  Papers  and  Addresses,  edited 
by  Albert  Shaw,  New  York,  1917,  193,  198. 

It  may  be  observed  that  the  United  States  has  not  infrequently  acted  in 
concert  with  American  States  to  prevent  war  or  establish  conditions  of  peace 
on  American  soil.  Thus  through  the  united  efforts  of  the  United  States  and 
Mexico,  and  in  the  presence  of  their  diplomatic  representatives,  there  was 
signed  at  Washington,  Dec.  20,  1907,  by  plenipotentiaries  of  Costa  Rica, 
Guatemala,  Honduras,  Nicaragua  and  Salvador,  a  general  treaty  of  peace 
and  amity.  Am.  J.,  II,  Supp.,  219  ;  Malloy's  Treaties,  II,  2392.  In  1915, 
the  United  States  joined  with  six  other  American  States  in  an  appeal  to  the 
revolutionary  factions  in  Mexico  to  meet  in  conference  to  adjust  their  differ- 
ences and  reestablish  constitutional  government  in  that  country.  Senate 
Doc.  No.  324,  64  Cong.,  1  Sess.  Such  efforts  do  not,  however,  manifest  any 
application  of  the  Monroe  Doctrine,  inasmuch  as  the  participants  have  been 
exclusively  American  States,  and  the  problems  involved  have  been  unrelated 
to  those  of  other  continents. 

1  Mr.  Olney,  Secy,  of  State,  to  Mr.  Bayard,  American  Ambassador  at 
London,  July  20,  1895,  For.  Rel.  1895,  I,  54.5,  Moore,  Dig.,  VI,  535,  548. 

"As  the  Monroe  Doctrine  neither  asserts  nor  involves  any  right  of  control 
by  the  United  States  over  any  American  nation,  it  imposes  upon  the  United 
States  no  duty  towards  European  powers  to  exercise  such  a  control.  It  does 
not  call  upon  the  United  States  to  collect  debts  or  coerce  conduct  or  redress 
wrongs  or  revenge  injuries."  Ehhu  Root,  "The  Real  Monroe  Doctrine", 
Proceedings,  Am.  Soc.  Int.  Law,  VIII,  6,  18. 

-  Certain  Acts  Involving  or  Threatening  Permanent  Occupation,  supra, 
§  92.  See,  also.  President  Roosevelt,  Annual  Message,  Dec.  3,  1901,  For. 
Rel.  1901,  xxxvi,  Moore,  Dig.,  VI,  595. 

'  President  Roosevelt,  Annual  Message,  Dec.  6,  1904,  For.  Rel.  1904,  xli, 
Moore,  Dig.,  VI,  596.  Cf.  Leo  S.  Rowe,  "Misconceptions  and  Limitations  of 
the  Monroe  Doctrine",  Am.  Soc.  Int.  Law,  Proceedings,  VIII,  126,  140-141. 

155 


§  95]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

poses  certain  Central  American  States.^  It  is  believed,  moreover, 
that  in  the  event  of  conditions  stated  by  President  Roosevelt, 
the  United  States  would  in  fact  prefer  to  exercise  an  international 
police  power,  than  to  endeavor,  as  an  alternative,  to  thwart  vig- 
orous non-American  coercive  measures  otherwise  demanded  by 
the  requirements  of  justice  and  necessitating  any  occupation  of 
American  territory.^ 


§  96.   The  Relation  of  the  Monroe  Doctrine  to  Interna- 
tional Law. 

The  place  in  law  which  the  assertions  by  the  United  States  of 
a  right  to  check  the  freedom  of  action  of  non-American  States 
with  respect  to  the  American  continents  have  attained,  must  de- 
pend upon  the  effect  which  in  practice  such  assertions  have  pro- 
duced upon  the  conduct  of  those  States.  That  effect  is  a  bare 
fact ;  and  it  is  not  to  be  ascertained  by  reference  to  the  supposed 
expediency  or  inexpediency  of  the  policies  which  have  influenced 
the  United  States  in  its  conduct.  Nor  is  it  related  to  the  circum- 
stance that  grounds  of  interference  relied  upon  in  the  twentieth 
century  may  differ  in  any  respect  from  those  invoked  by  President 
Monroe  and  embrace  objections  which  he  and  his  cabinet  did  not 

1  Certain  Acts  Involving  or  Threatening  Permanent  Occupation,  sujrra, 
§  92;   A.  B.  Hart,  The  Monroe  Doctrine,  1916,  Chap.  XX. 

2  The  theory  advanced  in  certain  quarters  that  a  measure  practically  pre- 
ventive of  issues  demanding  interference  by  the  United  States  under  cover 
of  the  Monroe  Doctrine  is  to  be  found  in  the  releasing  or  emancipation  of 
Latin  America  from  fiscal  dependence  upon  non-American  States,  is  not  with- 
out significance.  Its  application  appears  to  offer  certain  objections,  of  which 
the  most  obvious  is  that  any  retarding  of  the  investment  of  non-American 
capital  in  American  territory  constitutes  an  economic  detriment  to  the  State 
whose  normal  development  is  hampered  by  lack  of  fiscal  means  of  transmuting 
natural  resources  into  liquid  assets  required  for  other  purposes,  and  when 
those  means  are  not  available  to  a  sufficient  degree  in  neighboring  countries. 
Any  effort  to  check  the  healthy  and  normal  progress  of  American  States  as  a 
means  of  avoiding  difficulties  to  which  it  is  feared  their  unwisdom  or  miscon- 
duct may  give  rise,  would  appear  to  stunt  artificially  their  natural  growth.  If 
foreign  fiscal  aid  of  whatever  origin  is  in  fact  needed  by  an  American  State,  the 
latter  cannot  be  said  to  attiin  its  reasonable  aspirations  unless  the  channel 
which  should  attract  capital  be  unobstructed  by  any  obstacle.  See,  in  this 
connection,  Leo  S.  Rowe,  Proceedings,  Am.  Soc.  Int.  Law,  VIII,  138-14U ; 
also  A.  B.  Hart,  The  Monroe  Doctrine,  238-241,  with  special  reference  to  the 
views  of  President  Wilson,  1913-1915. 

In  response  to  a  request  from  Salvador  in  February,  1920,  for  an  exposition 
of  the  views  of  the  Government  of  the  United  States  concerning  the  Monroe 
Doctrine,  a  response  was  made  referring  to  the  views  expressed  by  President 
Wilson  in  an  address  before  the  Second  Pan  American  Scientific  Congress  at 
Washington,  Jan.  6,  1916.  See  Republica  de  El  Salvador  :  Boletin  del  ministerio 
de  Relaciones  Exferiores.  March,  1920,  p.  19.  For  the  text  of  that  address,  see 
J.  B.  Scott,  President  Wilson's  Foreign  Policy,  New  York,  1918,  154,  159-162. 

156 


RELATION  TO  INTERNATIONAL  LAW  [§  96 

raise.  It  is  also  unimportant  in  legal  contemplation,  whether 
the  term  Monroe  Doctrine  fitly  describes  what  has  taken  place. 

It  is  believed  to  be  of  utmost  significance  that  acts  of  inter- 
ference within  the  limits  above  observed  have  been  eminently 
successful,  and  have  at  times  led  to  explicit  acknowledgment  of 
the  soundness  of  the  principle  behind  them.^  The  real  reason 
for  such  a  yielding  has  been  that  the  conduct  of  the  United  States 
has  commonly  found  simple  justification,  either  in  the  circumstance 
that  the  acts  which  it  sought  to  thwart  amounted  to  unjust  and 
oppressive  treatment  of  American  States,  or  because  when  such 
did  not  appear  to  be  the  case,  the  requirements  of  the  defense  of 
the  United  States  could  be  fairly  invoked  by  way  of  excuse. 
Concerning  those  requirements  there  has  been  at  times  difference 
of  opinion,  and  it  may  still  be  anticipated,  should  an  American 
State  endeavor  to  transfer  territory  or  any  rights  therein  to  a 
proscribed  grantee  of  another  continent.  Yet  the  known  opposi- 
tion of  the  United  States  to  such  a  proceeding  would  doubtless 
tend,  as  it  has  heretofore,  to  prevent  a  non-American  State  from 
venturing  upon  a  contract  of  cession  with  even  the  most  willing 
grantor. 

It  may  be  acknowledged  that  no  rule  of  international  law  im- 
poses a  duty  upon  the  United  States  to  intervene  when  under 
the  theory  of  the  Monroe  Doctrine  it  may  elect  to  do  so.  It 
may  also  be  acknowledged  that  that  law  does  not  in  terms  an- 
nounce or  intimate  as  yet  that  the  United  States  may  lawfully 
invoke  that  doctrine  as  such,  and  according  to  its  own  inter- 
pretation of  it,  as  a  sufficient  justification  for  its  action.  To 
this  extent,  and  no  further,  it  may  be  safely  declared  that  the 
Monroe  Doctrine  is  not  itself  a  part  of  international  law.  On 
the  other  hand,  the  steadily  increasing  disposition  of  non- 
American  States  to  accept  as  not  unlawful  the  claims  of  the  United 
States  to  the  possession  of  a  right  to  thwart  interference  with 
the  political  independence  of  American  States,  or  to  oppose  acts 
involving  the  occupation  of  their  territory  even  when  not  of  such 

1  J.  B.  Moore,  Principles  of  American  Diplomacy,  New  York,  1918,  258-261. 

"The  governments  of  Europe  have  gradually  come  to  realize  that  the 
existence  of  the  policy  which  Monroe  declared  is  a  stubborn  and  continuing 
fact  to  be  recognized  in  their  controversies  with  American  countries.  We 
have  seen  Spain,  France,  England,  Germany,  with  admirable  good  sense  and 
good  temper,  explaining  beforehand  to  the  United  States  that  they  intended 
no  permanent  occupation  of  territory,  in  the  controversy  with  Mexico  forty 
years  after  the  Declaration,  and  in  the  controversy  with  Venezuela  eighty 
years  after.  In  1903  the  Duke  of  Devonshire  declared  '  Great  Britain  accepts 
the  Monroe  Doctrine  unreservedly.'  "  Elihu  Root,  Proceedings,  Am.  See. 
Int.  Law,  VIII,  6,  9. 

157 


§  96J  RIGHTS   OF   POLITICAL   INDEPENDENCE 

character,  has  already  served  to  estabHsh  a  practice  which  re- 
gards the  actual  operation  of  the  Monroe  Doctrine  as  not  inter- 
nationally illegal.  It  is  the  absence  of  tokens  of  disapproval  on 
the  part  of  non-American  States  which  has  significance ;  and  this 
finds  fresh  illustration  when,  on  occasions  as  declarations  appended 
by  the  United  States  to  its  ratifications  of  general  international 
conventions  advert  to  the  theory  of  the  Monroe  Doctrine  as  a 
national  pretension,  the  claim  remains  unchallenged.^ 

The  present  importance  of  the  Monroe  Doctrine  is  largely  de- 
rived, as  Sir  Frederick  Pollock  has  pointed  out,  from  the  contin- 
uous and  deliberate  approval  of  it  by  the  presidents  of  the  United 
States.  The  doctrine,  he  declared,  "  is  a  living  power  because 
it  has  been  adopted  by  the  Government  and  the  people  of 
the  United  States,  with  little  or  no  regard  to  party  divisions,  for 
the  best  part  of  the  century."  ^  It  is  the  resolute,  and  what  has 
come  to  be  habitual  attitude  expressed  in  behalf  of  the  United 
States,  whenever  the  conduct  of  non-American  States  threatens 
to  disregard  the  obligations  of  non-interference  and  of  abstinence 
from  acquisitions  of  territory  which  it  has  sought  to  impose,  that 
sustain  and  invigorate  its  claims.^  The  acquiescence  of  non- 
American  States  together  with  the  devotion  of  the  United  States 
to  the  principles  on  which  it  rests,  have  united  to  cause  the  INIonroe 
Doctrine  to  be  regarded  as  a  reasonable  and   lawful  basis  of  re- 

^  "To  its  explicit  acceptance  by  Great  Britain  and  Germany  there  may  be 
added  the  declaration  which  was  spread  by  unanimous  consent  upon  the 
minutes  of  the  Hague  Conference,  and  which  was  permitted  to  be  annexed 
to  the  signature  of  the  American  delegates  to  the  Convention  for  the  peaceful 
adjustment  of  international  disputes,  that  nothing  therein  contained  should 
be  so  construed  as  to  require  the  United  States  '  to  depart  from  its  traditional 
policy  of  not  entering  upon,  interfering  with,  or  entangling  itself  in  the  po- 
litical questions  or  internal  administration  of  any  foreign  State ',  or  to  relinquish 
'its  traditional  attitude  towards  purely  American  questions.'"  J.  B.  Moore, 
Principles  of  American  Diplomacy,  261. 

See  Malloy's  Treaties,  II,  2032.  Cf.  also  Resolution  of  Ratification  by  the 
Senate  of  the  Hague  Convention  of  1907,  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  id.,  II,  2247. 

-  "The  Monroe  Doctrine",  Senate  Doc.  No.  7,  58  Cong.,  1  Sess.,  reprinted 
from  The  Ninete&nth  Cenlui^y,  Oct.,  1902. 

^  "As  the  particular  occasions  which  called  it  forth  have  slipped  back  into 
history,  the  declaration  itself,  instead  of  being  handed  over  to  the  historian, 
ha-5  grown  continually  a  more  vital  and  insistent  rule  of  conduct  for  each  suc- 
ceeding generation  of  Americans.  Never  for  a  moment  have  the  responsible 
and  instructed  statesmen  in  charge  of  the  foreign  affairs  of  the  United  States 
failed  to  consider  themselves  bound  to  insist  upon  its  policy.  Never  once 
has  the  public  opinion  of  the  people  of  the  United  States  failed  to  support  every 
just  application  of  it  as  new  occasion  has  arisen.  Almost  every  president  and 
secretary  of  state  has  restated  the  doctrine  with  vigor  and  emphasis  in  the  dis- 
cussion of  the  diplomatic  affairs  of  his  day."  Elihu  Root,  Proceedings,  Am. 
Soc.  Int.  Law,  1914,  VIII,  9.  See  John  W.  Foster,  A  Century  of  American  Di- 
plomacy, Boston,  1900,  477. 

158 


RELATION  TO  LEAGUE   OF  NATIONS  [§97" 

straint.  Such  a  result  could  not  have  occurred  had  not  the  appli- 
cation of  that  doctrine  wrought  justice  for  the  Western  Hemi- 
sphere and  done  no  harm  to  States  outside  of  it.^ 


J 

§  97.    The  Relation  of  the  Monroe  Doctrine  to  the  League 
of  Nations. 

In  January,  1917,  President  Wilson  announced  as  a  proposal 
"that  the  nations  should  with  one  accord  adopt  the  doctrine  of 
President  Monroe  as  the  doctrine  of  the  world :  that  no  nation 
should  seek  to  extend  its  polity  over  any  other  nation  or  people, 
but  that  every  people  should  be  left  free  to  determine  its  own 
polity,  its  own  way  of  development,  unhindered,  unthreatened, 
unafraid,  the  little  along  with  the  great  and  powerful."  ^ 

The  terms  of  Article  X  of  the  Covenant  of  the  League  of  Na- 
tions established  the  undertaking  of  the  members  of  that  body 
to  respect  and  preserve  as  against  external  aggression,  the  terri- 
torial integrity  and  existing  political  independence  of  all  members 
of  the  League.^  This  undertaking  would  forbid  those  members 
which  were  not  American  States  from  committing  against  their 
fellow  members  in  the  Western  Hemisphere  acts  of  aggression 
such  as  the  United  States  itself,  in  pursuance  of  the  Monroe 
Doctrine,  asserts  the  right  to  oppose.  Respect  for  the  Covenant 
would,  therefore,  appear  to  diminish  the  burden  assumed  by  the 

^  "Finally,  and  principally,  it  is  a  mistake  to  imagine  that  the  Monroe 
Doctrine  is  other  than  a  policy  beneficial  to  the  whole  world  —  a  true  gospel 
of  peace."  Eugene  Wambaugh,  Proceedings,  Am.  Soc.  Int.  Law  (1914),  VIII, 
143,  154. 

*  Address  to  the  Senate,  Jan.  22,  1917,  on  the  essentials  of  permanent  peace, 
American  White  Book,  European  War,  IV,  381,  385-386;  President  Wilson's 
Foreign  Policy,  Messages,  etc.,  edited  by  J.  B.  Scott,  1918,  245,  254.  On 
Jan.  8,  1918,  the  President  proposed  as  one  of  the  fourteen  points  of  what  he 
declared  to  be  the  only  possible  program  for  peace,  a  general  association  of 
nations  to  be  formed  under  specific  covenants  for  the  purpose  of  affording 
mutual  guaranties  of  political  independence  and  territorial  integrity  to  small 
and  great  States  alike.  Address  to  the  Congress,  Official  Bulletin,  Jan.  8, 
1918,  Vol.  II,  No.  202,  p.  3. 

3  According  to  the  typewritten  draft  of  the  original  plan  of  a  covenant 
understood  to  have  been  proposed  by  President  Wilson  at  the  Peace  Conference 
early  in  1919,  the  contracting  parties  agreed  to  "unite  in  guaranteeing  to  each 
other  political  independence  and  territorial  integrity."  CJ.  Treaty  of  Peace 
with  Germany,  Hearings  before  Senate  Committee  on  Foreign  Relations, 
66  Cong.,  1  Sess.,  II,  1165,  1166.  See  supposed  comments  of  Messrs.  D.  H. 
Miller  and  G.  Auchincloss,  legal  advisers,  touching  this  proposal,  id.,  1183. 
The  foregoing  documents  were  offered  as  exhibits  by  Wm.  C.  Bullitt,  formerly 
Chief  of  Division  of  Current  Intelligence  Summaries  of  the  American  Com- 
mission at  the  Peace  Conference,  at  a  hearing  before  the  Senate  Committee 
on  Foreign  Relations,  Sept.  12,  1919. 

159 


§  97]  RIGHTS   OF   POLITICAL   INDEPENDENCE 

United  States,  by  lessening  the  probability  that  there  would  be 
occasion  for  interference. 

The  question  may  arise,  however,  whether  by  accepting  the 
obligation  to  abstain  from  political  interference  with  other  mem- 
bers of  the  League,  including  those  which  are  American  States, 
the  United  States  would  give  up  the  right  to  prevent  voluntary 
transfers  of  American  territory  sought  to  be  made  by  neighboring 
countries  to  non-American  powers.  Whether  or  not  the  declara- 
tion of  the  Covenant  to  the  effect  that  nothing  therein  shall  be 
deemed  to  affect  the  validity  of  international  engagements,  such 
as  treaties  of  arbitration  or  regional  understandings  like  the  Mon- 
roe Doctrine,  for  securing  the  maintenance  of  peace,  offers  a 
sufficient  answer,  it  is  not  to  be  doubted  that  the  United  States 
would  not  adhere  to  the  League  of  Nations  save  on  terms  definitely 
recognizing  the  propriety  of  the  invocation  of  the  Monroe  Doctrine, 
to  the  full  extent  to  which  it  had  been  applied,  embracing  the 
use  of  it  to  thwart  the  transfers  of  territory  to  non-American 
States.^ 

It  seems  to  be  clear  ttat  through  the  provisions  of  Article  X 
as  well  as  of  others,  the  Covenant  recognizes  the  voice  of  American 
States  in  the  affairs  of  non-American  States,  and  reciprocally  that 
of  the  latter  in  affairs  of  the  Western  Hemisphere.  This  appears  to 
be  true  notwithstanding  a  possible  design  to  leave  to  American 
States  (and  to  the  ^United  States  as  their  leader  should  it  become 
a  member  of  the  League)  the  general  conduct  of  American  affairs, 
involving  the  prevention  of  war  and  the  maintenance  of  conditions 
not  provocativ'e  of  it.  Thus  acceptance  by  American  States  of 
membership  in  the  League  would  point  to  the  weakening  of 
the  so-called   Pan-American   system.^    With   the  United  States 

1  In  this  connection  see  communication  of  Mr.  Elihu  Root,  to  Senator  H.  C. 
Lodge,  June  19,  1919,  Am.  J.,  XIII,  596. 

"  "The  idea  of  Pan- Americanism  is  obviously  derived  from  the  conception 
that  there  is  such  a  thing  as  an  American  system ;  that  this  system  is  based 
upon  distinctive  interests  which  the  American  countries  have  in  common; 
and  that  it  is  independent  of  and  different  from  the  European  system.  To  the 
extent  to  which  Europe  should  become  implicated  in  American  politics,  or  to 
which  American  countries  should  become  implicated  in  European  politics, 
this  distinction  would  necessarily  be  broken  down,  and  the  foundations  of 
the  American  system  would  be  impaired ;  and  to  the  extent  to  which  the 
foundations  of  the  American  system  were  impaired,  Pan-Americanism  would 
lose  its  vitality  and  the  Monroe  Doctrine  its  accustomed  and  tangible  meaning. 
I  say  this  on  the  supposition  that  the  Monroe  Doctrine  is,  both  geographically 
and  politically,  American,  its  object  being  to  safeguard  the  Western  Hemi- 
sphere against  territorial  and  political  control  by  non-American  powers.  Of 
this  limited  application  I  would  adduce  as  proof  not  so  much  the  fact  that  the 
Monroe  Doctrine,  although  conceived  in  terms  of  colonial  emancipation,  has 
not  prevented  the  United  States  and  other  American  governments  from  forcibly 

160 


RELATION  TO  LEAGUE   OF  NATIONS  [§  97 

represented  on  the  Council  of  the  League,  the  chief  burden 
of  whose  work  doubtless  pertains  to  essentially  non-American 
affairs,  the  argument  advanced  by  Washington,  emploj'ed  by 
Monroe,  and  frequently  relied  upon  by  their  successors,  to  the 
effect  that  American  abstinence  from  implication  in  European 
affairs  justified  the  demand  for  European  abstinence  from  im- 
plication in  American  affairs,  could  no  longer  be  invoked.  The 
participation  of  American  States  in  the  League  and  in  the  labors 
of  the  Council  thereof,  would  seem  to  remove  one  basis  of  an 
essentially  American  alignment  of  those  States  in  the  formulation 
and  advocacy  of  proposals  designed  to  modify  or  give  fresh 
application  to  principles  of  international  law. 

extending  their  territorial  limits  at  one  another's  expense,  as  to  the  fact  that 
it  has  been  regarded  by  the  United  States  as  justifying  the  latter's  recent 
enforcement  in  Nicaragua,  Haiti,  Santo  Domingo,  and  elsewhere,  of  pre- 
cisely such  measures  of  supervision  and  control  as  it  is  understood  to  forbid 
non-American  powers  to  adopt  in  American  countries."  J.  B.  Moore,  Prin- 
ciples of  American  Diplomacy,  1918,  X-XI. 

Declared  President  Harding  in  his  inaugural  address,  March  4,  1921 : 
"The  recorded  progress  of  our  Republic,  materially  and  spiritually,  in  itself 
proves  the  wisdom  of  the  inherited  policy  of  non-involvement  in  Old  World 
affairs.  Confident  of  our  ability  to  work  out  our  own  destiny,  and  jealously 
guarding  our  right  to  do  so,  we  seek  no  part  in  directing  the  destinies  of  the 
Old  World.  We  do  not  mean  to  be  entangled.  We  will  accept  no  responsi- 
bility except  as  our  own  conscience  and  judgment,  in  each  instance,  may  de- 
termine. .  .  . 

"We  are  ready  to  associate  ourselves  with  the  nations  of  the  world,  great 
and  small,  for  conference,  for  counsel;  to  seek  the  expressed  views  of  world 
opinion;  to  recommend  a  way  to  approximate  disarmament  and  relieve  the 
crushing  burdens  of  military  and  naval  establishments.  We  elect  to  partici- 
pate in  suggesting  plans  for  mediation,  conciliation,  and  arbitration,  and 
would  gladly  join  in  that  expressed  conscience  of  progress,  which  seeks  to 
clarify  and  write  the  laws  of  international  relationship,  and  establish  a  world 
court  for  the  disposition  of  such  justiciable  questions  as  nations  are  agreed  to 
submit  thereto.  In  expressing  aspirations,  in  seeking  practical  plans,  in 
translating  humanity's  new  concept  of  righteousness  and  justice  and  its  hatred 
of  war  into  recommended  action  we  are  ready  most  heartily  to  unite,  but 
every  commitment  must  be  made  in  the  exercise  of  our  national  sovereignty. 
Since  freedom  impelled,  and  independence  inspired,  and  nationality  exalted, 
a  world  supergovernment  is  contrary  to  everything  we  cherish  and  can  have 
no  sanction  by  our  Republic.  This  is  not  selfishness,  it  is  sanctity.  It  is  not 
aloofness,  it  is  security.  It  is  not  suspicion  of  others,  it  is  the  patriotic  ad- 
herence to  the  things  which  made  us  what  we  are."  Cong.  Record,  March 
4,  1921,  Vol.  LX,  No.  79,  p.  4740. 


VOL.  I  — 6  161 


TITLE    B 

GENERAL  RIGHTS  OF  PROPERTY  AND  CONTROL 

1 
CREATION.     TRANSFER.     EXTINCTION 

a 

Creation 

(1) 
§  98.    In  General. 

The  existence  of  an  exclusive  right  of  property  and  control  over 
territory  necessarily  implies  the  existence  of  a  possessor  whose 
capacity  to  possess  is  recognized  by  the  family  of  nations.  Every 
State  of  international  law  has  such  capacity,  and  is  bound  to 
utilize  it.  A  country  may,  in  the  course  of  its  internal  develop- 
ment, reach  a  stage  where  it  is  deemed  to  be  capable  of  possessing 
such  a  right,  and  of  responding  to  the  obligations  incidental  to  it, 
long  before  it  attains  a  position  such  as  to  justify  its  admission 
to  full  membership  in  the  society  of  States.^  Thus  certain  coun- 
tries, which  by  reason  of  their  connection  with  and  attachment 
to  a  civilization  other  than  that  which  is  known  as  European  or 
Christian,  have  not  been  received  for  all  purposes  into  the  family 
of  nations,  nevertheless,  hold  titles  to  territory  not  unlike  those 
held  by  States  generally.  The  former  are  regarded  as  capable 
of  possessing  exclusive  rights  of  property  and  control.^ 

1  According  to  Westlake,  in  order  to  enable  a  country  to  secure  recognition 
of  its  capacity  to  possess  a  title  to  territorial  sovereignty,  there  must  be  "a 
territory  in  which  the  pursuits  of  civilised  life  can  be  carried  on,  under  a  sov- 
ereign power  sufficiently  understanding  those  pursuits  and  sufficiently  or- 
ganised to  be  capable  of  giving  them  the  necessary  protection,  and  of  admin- 
istering justice  in  the  questions  arising  out  of  them.  Or  at  least  whether 
there  is  a  sovereign  power  which  can  do  this  in  conjunction  with  consuls  ac- 
credited to  it  and  whose  authority  is  normally  supported  by  it,  as  happens  in 
states  like  Turkey  or  China."     Int.  L.,  2  ed.,  I,  91-92. 

2  In  spite  of  the  "Boxer"  troubles  in  China  in  1900,  Mr.  Hay,  Secretary  of 
State,  made  singular  effort  to  secure  a  solution  which  should  preserve  the 
territorial  and  administrative  entity  of  that  country.  See  his  circular  note 
of  July  3,  1900,  For.  Rel.  1900,  299. 

Acts  in  Derogation  of  the  Supremacy  of  the  Territorial  Sovereign,  infra, 
§  202;   The  Conclusion  of  Special  Relationships,  supra,  §  57. 

162 


DISCOVERY  [§  99 

A  right  of  property  and  control,  or,  as  it  is  frequently  termed, 
a  right  of  territorial  sovereignty,  may  be  said  to  come  into  being 
when  a  State,  or  a  country  regarded  as  possessed  of  the  requisite 
capacity,  asserts  dominion  by  appropriate  action  over  territory 
not  in  fact  under  that  of  any  other  State  or  political  entity  ac- 
knowledged to  be  qualified  to  hold  title.^  It  becomes  necessary 
to  observe  what  acts  have  been  regarded,  and  are  now  deemed, 
essential  in  order  to  create  such  a  right. 

(2) 
§  99.    Discovery. 

The  term  discovery  refers  to  the  ascertaining  of  the  existence 
of  territory  previously  unknown  to  civilization.^  Such  an  act  is 
not  in  itself  assertive  of  dominion. 

At  the  time  of  the  European  explorations  in  the  Western  Hemi- 
sphere in  the  fifteenth  and  sixteenth  centuries,  the  so-called  dis- 
coverer seems  to  have  been  expected  to  do  more  than  merely  as- 
certain the  existence  of  new  lands.  He  was  often  given  letters 
patent,  authorizing  him  to  assert  dominion  in  behalf  of  his  sov- 
ereign.^ Upon  reaching  previously  unknown  shores  he  landed 
and  formally  took  possession.^     Sometimes  he  built  a  fort ;  some- 

1  Moore,  Dig.,  I,  303. 

2  In  earlier  centuries  the  so-called  discoverer  was  oftentimes  in  reality 
merely  the  explorer  who  investigated  the  nature  and  extent  of  lands  of  which 
the  existence  was  generally,  although  loosely  known,  but  of  which  the  contour 
and  area  and  physical  characteristics  were  unknown.  He  was  truly  the  dis- 
coverer of  mountains  and  plains  and  rivers  and  islands;  and  he  ascertained, 
as  no  others  had  before  him,  the  vastness  of  territories  through  which  he 
roamed.  In  a  strict  sense  the  places  which  he  explored  were  not  infrequently 
new-found  lands,  because  no  representative  of  European  civilization  had 
previously  seen  them  or  had  the  slightest  knowledge  of  what  the.y  were  like. 

Mr.  Upshur,  Secv.  of  State,  to  Mr.  Everett,  Oct.  9,  1843,  MS.  Inst.  Great 
Britain,  XV,  148,  165,  Moore,  Dig.,  I,  259,  260. 

^  Henry  VII,  by  letters  patent  of  March  5,  1496  (the  date  assigned  to  them 
by  J.  W.  Jones  of  the  British  Museum),  authorized  John  Cabot  and  his  sons 
not  only  "to  seeke  out,  discouer,  and  finde,  whatsoeuer  iles,  countreyes, 
regions  or  prouinces,  of  the  heathen  and  infidelles,  whatsoeuer  they  bee,  and 
in  what  part  of  the  worlde  soeuer  they  be,  whiche  before  this  time  hauc  been 
vnknowen  to  all  Christians",  but  also  "to  set  up  our  banners  and  cnsigncs  in 
euery  village,  towne,  castel,  yle,  or  maine  lande,  of  them  newely  founde", 
and  to  "subdue,  occupie,  and  possesse"  the  same,  and  "as  our  vassailes  and 
lieutenantes,  getting  vnto  vs  the  rule,  title,  and  jurisdiction  of  the  same." 
Richard  Hakluyt,  Divers  Voyages  Touching  the  Discovery  of  America,  pub- 
lished by  The  Haklu^i;  Society,  with  notes  and  introduction  by  John  Winter 
Jones,  London,  1850,  p.  21. 

See  letters  patent  granted  by  Queen  Elizabeth  to  Sir  Humphrey  Gilbert, 
June  11,  1578,  Richard  Hakluyt,"  The  Principal  Navigations  Voyages  Traffiques 
&  Discoveries  of  the  English  Nation,  1904  ed.,  Glascow,  p.  17. 

^  In  the  Journal  of  his  first  voyage.  Columbus  thus  describes  his  landing 
on  Oct.  12,  1492:  "The  Admiral  took  the  royal  standard,  and  the  captains 
went  with  two  banners  of  the  green  cross,  which  the  Admiral  took  in  all  the 

163 


§  99]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

times  he  left  a  portion  of  his  followers  in  control  of  a  thin  area 
adjacent  to  it.  Occasionally  he  sailed  away,  leaving  little  or  no 
trace  of  his  visit.^  Frequently  the  fact  of  his  achievement  re- 
mained long  unknown.  Thus  it  sometimes  happened  that  a  later 
explorer  made  claim  to  the  same  territory  in  behalf  of  another 
sovereign,  whose  subjects,  finding  none  in  possession,  went  into 
the  surrounding  country  and  settled  there.  Such  settlers,  after 
securing  a  frail  lodgment,  were  in  turn  oftentimes  exterminated 
by  the  Indians  or  by  the  subjects  of  another  monarch  w^hose  later 
explorations  they  opposed.^ 

Such  situations  gave  rise  to  the  inquiry  how  far  an  act  of  so- 
called  discovery,  whether  or  not  coupled  with  a  formal  taking  of 
possession,  served  in  itself  to  create  a  right  of  property  and  con- 
trol, or  lay  the  foundation  for  one.^ 

States  were  agreed  that  the  native  inhabitants  possessed  no 

rights  of  territorial  control  which  the  European  explorer  or  his 

monarch  was  bound  to  respect.^     They  were  also  agreed,  with 

ships  as  a  sign,  with  an  F  and  a  Y  and  a  crown  over  each  letter,  one  on  one  side 
of  the  cross  and  the  other  on  the  other.  Having  landed,  they  saw  trees  very 
green,  and  much  water,  and  fruits  of  diverse  kinds.  The  Admiral  called  to  the 
two  captains,  and  to  the  others  who  leaped  on  shore,  and  to  Rodrigo  Escovedo, 
secretary  of  the  whole  fleet,  and  to  Rodrigo  Sanchez  of  Segovia,  and  said  that 
they  should  bear  faithful  testimony  that  he,  in  presence  of  all,  had  taken,  as 
he  now  took,  possession  of  the  said  island  for  the  Iving  and  for  the  Queen  his 
Lords,  making  the  declarations  that  are  required,  as  is  now  largely  set  forth  in 
the  testimonies  which  were  made  in  writing."  Original  Narratives  of  Early 
American  History,  The  Northmen,  Columbus,  and  Cabot,  edited  by  Julius  E. 
Olson  and  Edward  Gaylord  Bourne,  New  York,  1906,  p.  110. 

1  Westlake,  2  ed.,  I,  101-105. 

-  "When  navigators  have  met  with  desert  countries,  in  which  those  of  other 
nations  had,  in  their  transient  visits,  erected  some  monument  to  show  their 
having  taken  possession  of  them,  they  have  paid  as  little  regard  to  that  empty 
ceremony  as  to  the  regulation  of  the  Popes,  who  divided  a  great  part  of  the 
world  between  the  crowns  of  Castile  and  Portugal."  Vattel,  Book  1,  Ch.  18, 
Sec.  208,  Chitty's  ed.,  London,  1834,  p.  99.  The  experience  of  the  French  at 
the  Bay  of  Espiritu  Santo,  called  by  La  Salle  the  Bay  of  St.  Bernard,  on  the 
Gulf  of  Mexico,  1685-1689,  is  a  good  illustration.  Arnerican  State  Papers, 
For.  Rel.  IV,  473-475;  see,  also,  Ernest  Nys  in  "Les  Etats-Unis  et  le  Droit 
des  Gens",  Rev.  Droit  Int.,  2  ser.,  XI,  36,  39-45. 

'  A  portion  of  the  Roman  law  concerning  the  theory  of  the  possession  of 
immovables  embodied  principles  capable  of  aiding  the  statesmen  of  the  six- 
teenth century.  According  to  that  law,  in  order  to  obtain  a  right  of  posses- 
sion, there  was  required  of  the  possessor,  declares  Westlake,  both  "a  bodily 
act  and  a  mental  attitude."  The  "necessary  bodily  act,"  he  adds,  "was 
prehension ;  such  a  seizure  as  to  give  the  mastery  over  the  thing,  including 
the  power  of  retaining  it,  without  which  there  would  not  be  mastery."  The 
extent  of  the  possession  was  determined  by  the  amount  which  the  possessor 
could  control  from  the  position  actually  taken  up.  The  mental  attitude  re- 
quired was  an  intention  to  possess.  Such  intention,  however,  had  reference 
to  the  nature  of  the  right  sought  to  be  acquired,  rather  than  to  the  extent  of 
what  was  acquired.  Westlake,  2  ed.,  I,  99-100,  citing  Paulus,  in  Dig.  41,  2,  3  ; 
Javolenus,  in  Dig.  41,  2,  22;  Savigny  on  Possession,  pp.  173-174,  English 
translation. 

*  Marshall,  C.  J.,  in  Johnson  v.  Mcintosh,  8  Wheat.  543,  573;   Messrs.  C. 

164 


DISCOVERY  [§  99 

the  possible  exception  of  Spain  and  Portugal,  that  the  Pope 
possessed  neither  the  title  to  unknown  lands,  nor  the  right  to 
regulate  their  discovery  and  exploration.^ 

As  the  acquisition  of  ownership  of  new  lands  was  always  in 
behalf  of  the  sovereign,  and  involved  public  acts  for  his  benefit, 
it  was  not  supposed  that  title  could  be  acquired  through  the  efforts 
of  one  who  was  not  commissioned,  or  whose  acts  were  not  in  due 
course  ratified.^     Moreover,  it  was  deemed  of  utmost  importance 

Pinckney  and  Monroe,  U.  S.  Ministers,  to  Mr.  Cevallos,  Spanish  Minister  of 
State,  April  20,  1805,  American  State  Papers,  For.  Rel.,  II,  664 ;  Brit,  and  For. 
State  Pap.  (1817-1818),  322,  327,  Moore,  Dig.,  I,  263.  See,  also,  Dana's 
Wheaton,  §  166. 

1  See  The  Bull  Romanus  Pontifex  (Nicholas  V),  Jan.  8,  1455,  and  The  Bull 
Inter  Caetern  (Calixtus  III),  March  13,  1456,  by  which  exclusive  rights  to 
acquire  territory  and  make  conquests  from  the  capes  of  Bojador  and  Nao 
southward  through  and  beyond  Guinea  were  given  to  Portugal.  Also,  the 
Bulls  of  Pope  Alexander  VI  {Inter  Caetera,  May  3,  1493 ;  Eximiae  Devotionis, 
May  3,  1493  ;  Inter  Caetera,  May  4,  1493 ;  Dudum  Siquidem,  Sept.  26,  1493), 
assigning  to  the  Crown  of  Castile  exclusive  rights  in  lands  discovered  and  to  be 
discovered  west  of  the  meridian  fixed  one  hundred  leagues  west  of  any  of  the 
islands  of  the  Azores  and  Cape  Verde,  provided  that  such  lands  were  not 
in  the  actual  possession  of  any  Christian  king  or  prince  by  Christmas,  1492. 

It  may  be  observed  that  of  the  foregoing  Bulls,  those  of  1455  and  1456  re- 
ferred to  lands  already  acquired  and  to  be  acquired  (jam  acquisita  et  que  in 
futurum  acquiri  contigerit,  postquam  acquisita  fuerint,  according  to  that  of 
Jan.  8,  1455),  while  those  of  Alexander  VI  of  1493  embraced  lands  which  were 
unknown  and  had  been  or  remained  to  be  discovered  (omnes  et  singulas  terras 
et  insulas  predictas,  sic  incognitas,  et  hactemis  per  nuntios  vestros  repertas  et 
reperiendas  in  posterum,  according  to  the  Bull  Inter  Caetera  of  May  3 ;  omnes 
insulas  et  terras  firmas  inventas  et  inveniendas,  detectas  et  detegendas,  according 
to  the  Bull  Inter  Caetera  of  May  4,  1493).  Perhaps  the  achievement  of  Colum- 
bus may  account  for  the  specific  reference  to  acts  of  discovery.  It  should  be 
noted,  however,  that  the  treaty  concluded  between  Spain  and  Portugal  at 
Alca^ovas,  Sept.  4,  1479,  referred  to  lands  "discovered  or  to  be  discovered" 
{tierras  descobiertas  e  por  descobrir),  and  that  this  treaty  was  confirmed  by  the 
Bull  Aeterni  Regis  (Sixtus  IV),  of  June  21,  1481,  which  made  reference  like- 
wise to  "lands,  discovered  or  to  be  discovered"  (terris,  detectis  sen  detegendis, 
inventis  et  inveniendis) . 

Authoritative  texts  of  all  of  these  Bulls,  and  of  the  Treaty  of  Alca^ovas, 
together  with  English  translations,  are  among  the  first  eight  documents  con- 
tained in  European  Treaties  Bearing  on  the  History  of  the  United  States  and 
Its  Dependencies,  edited  by  Frances  G.  Davenport,  Washington,  The  Carnegie 
Institution,  1917.  Attention  is  called  to  the  illuminating  introduction  by  the 
editor,  and  to  the  introductory  editorial  note  and  bibliography  preceding 
each  document. 

See,  also,  E.  Nys,  Les  Origines  du  Droit  International  (1894),  370-374; 
H.  Vander  Linden,  "Alexander  VI  and  the  Demarcation  of  the  Maritime  and 
Colonial  Domains  of  Spain  and  Portugal",  Am.  Hist.  Rev.,  XXII,  I.  See,  in 
this  connection,  British  Guiana-Venezuela  Boundary  Arbitration,  Case  of 
Great  Britain,  Venezuela  No.  I  (1899)  [Cd.  9336],  pp.  157  et  seq.:  also  by  com- 
parison. Counter  Case  of  Venezuela,  Venezuela  No.  5  (1899)  [Cd.  9500], 
pp.  116  et  seq. 

2  Captain  Grav,  an  American  Citizen,  on  whose  discovery  and  exploration 
of  the  Columbia  River  in  May,  1792,  the  United  States  relied  in  part  in  claim- 
ing the  territory  drained  by  that  river,  did  not  take  formal  possession  of  the 
territory  watered  by  it,  and  held  no  commission  to  do  so.  For  that  reason  the 
British  Government  contended  that  the  acts  of  its  agent.  Captain  Vancouver, 
in  previously  discovering  the  mouth  of  the  Columbia,  and  subsequently,  upon 

165 


§  99]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

that  discoveries  and  explorations  should  be  proclaimed  and  widely 

known. ^ 

While  it  was  admitted  that  the  ascertaining  of  the  existence 

of  territory  and  the  formal  taking  possession  of  it  might  not  suffice 

to  create  a  complete  right  of  property  and  control  ^  it  was  generally 

maintained  that  the  acts  of  the  discoverer  afforded  his  sovereign 

at  least  an  exclusive  right  within  a  reasonable  time  to  perfect  his 

title  by  use  and  settlement.^      Concerning  what  were  the  limits 

of  a  reasonable  time,  there  was  no  unanimity  of  view.     Such  wide 

latitude  was  claimed  and  enjoyed  by  European  States  in  availing 

themselves  of  so-called  discoveries  in  their  behalf,  that  in  practice, 

the  distinction  between  the  legal  effect  of  such  acts  and  that  of 

explorations  followed  by  settlement,  for  a  long  time  meant  little.'* 

learning  of  Gray's  discovery,  in  exploring  the  river  for  one  hundred  miles  and 
taking  possession  of  the  country  in  behalf  of  his  sovereign,  secured  a  better 
foundation  for  a  title  than  had  the  acts  of  his  predecessor.  See  correspondence 
between  the  United  States  and  Great  Britain  relating  to  the  Oregon  Dispute, 
1842-1846,  Brit,  and  For.  State  Pap.,  XXXIV,  49-64,  108,  125-126.  Cj.  Mr. 
Upshur.  Secy.  State,  to  Mr.  Everett,  Oct.  9,  1844,  MS.  Inst.  Great  Britain, 
XV,  148,  165;  Moore,  Dig.,  I,  260;  Twiss,  The  Oregon  Question,  London, 
1846  ;   Hall,  Higgins'  7  ed.,  §  33  ;   Dana's  Wheaton,  250-254. 

"The  Settlements  of  La  Salle,  therefore,  at  the  head  of  the  Bay  St.  Bernard, 
Westward  of  the  River  which  he  called  Riviere  aux  Boeufs,  but  which  you  call 
Colorado  of  Texas,  was  not,  as  you  have  represented  it,  the  unauthorized 
incursion  of  a  private  Adventurer  into  the  Territories  of  Spain,  but  an  Estab- 
lishment having  every  character  that  could  sanction  the  formation  of  any 
European  Colony  upon  this  Continent ;  and  the  Viceroy  of  Mexico  had  no 
more  right  to  destroy  it  by  a  Military  Force,  than  the  present  Viceroy  would 
have,  to  send  an  army  and  destroy  the  City  of  New  Orleans.  It  was  a  part  of 
Louisiana,  discovered  by  La  Salle  under  formal  and  express  authority  from 
the  King  of  France."  Mr.  Adams,  Secy,  of  State,  to  Mr.  Onis,  Spanish  Minis- 
ter, March  12,  1818.  American  State  Papers,  For.  Rel.,  IV,  473 ;  Brit,  and 
For.  State  Pap.,  1817-1818,  477. 

1  Westlake,  2  ed.,  I,  102-103. 

2  This  is  interestingly  brought  out  in  the  instructions  to  the  English  com- 
missioners. May  22/June  1,  1604,  to  negotiate  the  treaty  with  Spain  which 
was  concluded  Aug.  18/28,  1604.  European  Treaties  Bearing  on  the  History 
of  the  United  States  and  Its  Dependencies  to  1648,  edited  by  Frances  Gardiner 
Davenport,  Carnegie  Institution,  Washington,  1917,  247,  note  4. 

3  "The  two  rules  generally,  perhaps  universally,  recognized  and  conse- 
crated by  the  usage  of  nations,  have  followed  from  the  nature  of  the  subject. 
By  virtue  of  the  first,  prior  discovery  gave  a  right  to  occupy,  provided  that 
occupancy  took  place  within  a  reasonable  time  and  was  ultimately  followed  by 
permanent  settlements  and  by  the  cultivation  of  the  soil."  Mr.  Gallatin, 
American  Plenipotentiary,  to  Mr.  Addington,  British  Plenipotentiary,  Dec.  19, 
1826,  American  State  Pap.,  For.  Rel.,  VI,  667;  Moore,  Dig.,  I,  263.  See, 
also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Preston,  Dec.  31,  1872,  citing  Vattel, 
Chap.  XVIII,  p.  98,Philadelphia  edition,  1859,  MS.  Notes  to  Haiti,  I,  125,  126, 
Moore,  Dig.,  I,  260;  Marshall,  C.  J.,  in  Johnson  v.  Mcintosh,  8  Wheat.  543. 
C/.  British  Guiana- Venezuela  Boundary  Arbitration,  Printed  Argument  on 
behalf  of  Venezuela,  British  Blue  Book,  Venezuela  No.  6  (1899)  [Cd.  9501], 
Chap.  VI,  pp.  177-238. 

^  See  portions  of  correspondence  between  Mr.  Adams,  Secy,  of  State,  and 
Mr.  Onis,  Spanish  Minister,  relating  to  the  Florida  Boundarv  Dispute,  Jan.  5, 
and  March  IS,  1818.  American  State  Pap.,  For.  Rel.,  VI,  455-460,  468- 
478;  Brit,  and  For.  State  Pap.  (1817-1818),  425-439,  461-491. 

166 


EXTENT  OF  POSSESSION.     CONTINUITY  [§  101 

With  the  gradual  acceptance  of  the  principle  that  a  complete 
right  of  sovereignty  over  newly  found  lands  could  not  be  established 
by  any  means  short  of  effective  occupation,  the  necessity  of  short- 
ening the  period  during  which  a  State  might  avail  itself  of  a  dis- 
covery made  in  its  behalf  became  better  understood.  If  such  an 
act  served  to  create  but  an  inchoate  title,  it  was  unreasonable 
that  the  steps  necessary  to  perfect  it  should  be  delayed  indefinitely.^ 
Thus,  the  modern  principle  was  finally  accepted  that  the  legal 
value  of  discovery  depended  upon  the  celerity  with  which  it  was 
followed  by  effective  occupation.  In  the  sixteenth  century  the 
discoverer  brought  into  being  rights  which  might  be  safely  slept 
upon  for  generations.  To-day,  were  he  able  to  ascertain  the  exist- 
ence of  lands  still  unknown  to  civilization,  he  would  have  no  sig- 
nificance save  as  he  might  herald  the  advent  of  the  settler. 

(3) 
Occupation 

§  100.   In  General.  ^^^ 

Occupation  may  be  described  as  the  assertion,  by  use  and  settle- 
ment, of  sovereignty  over  territory  not  already  under  the  dominion 
of  a  State  or  of  a  country  deemed  to  be  capable  of  exercising  an 
exclusive  right  of  property  and  control.  By  such  action,  as  has 
been  observed,  a  monarch,  in  former  times,  perfected  his  title  to 
lands  which  his  agent  had  discovered. 

Occupation  is  thus  essentially  a  means  whereby  a  right  of 
property  and  control  comes  into  being  or  is  perfected,  rather  than 
transferred.  It  is,  therefore,  a  process  which  is  only  available 
for  use  in  relation  to  lands  not  subjected  to  a  claim  of  sovereignty 
deemed  to  be  entitled  to  respect.  Nor  can  it  be  utilized  at  such 
time  as  there  may  remain  throughout  the  surface  of  the  earth  no 
territory  which  is  not  subjected  to  such  a  claim. 

(b) 

§  101.   Extent  of  Possession.     Continuity. 

If  the  physical  control  of  territory  effected  by  settlement  and 

use  is  essential  to  the  creation  or  perfecting  of  an  exclusive  right 

^Declared  Vattel :  "Thus,  navigators  going  on  voyages  of  discovery, 
furnished  with  a  commission  from  their  sovereign,  and  meeting  with  islands 
or  other  lands  in  a  desert  state,  have  taken  possession  of  them  in  the  name  of 
their  nation :  and  this  title  has  been  usually  respected,  provided  it  was  soon 
after  followed  by  a  real  possession."  Vattel,  Chap.  XVIII,  98,  Philadelphia 
edition,  1859 ;  quoted  by  Mr.  Fish,  Secy,  of  State,  to  Mr.  Preston,  Dec.  31, 
1872,  MS.  Notes  to  Haiti,  I,  125,  126.  Moore,  Dig.,  I,  260. 

167 


§  101]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

of  sovereignty,  the  extent  of  the  area  over  wliich  such  a  right  should 
be  generally  respected  ought  to  be  measured  and  limited  according 
to  a  like  test.  Numerous  considerations,  however,  long  deterred 
States  from  accepting  this  principle. 

Centuries  were  required  for  the  settlement  of  the  American 
continents  after  their  form  and  size  were  roughly  known.  During 
that  interval  European  monarchs  sought,  in  fierce  opposition  to 
each  other,  to  establish  rights  of  property  and  control  over  vast 
and  uninhabited  areas  by  virtue  of  barest  lodgments  effected 
along  the  coasts  or  within  the  interior.  While  it  came  to  be 
admitted  that  occupation  was  necessary  in  order  to  perfect  a 
title  based  on  discovery,  it  was  constantly  asserted  that  a  State 
whose  nationals  had  established  a  number  of  isolated  settlements 
at  points  remote  from  each  other,  was  to  be  regarded  as  legally 
in  possession  of  broad  expanses  of  territory  connecting  them  or 
extending  away  from  them.  Thus  constructive,  rather  than 
effective,  occupation  was  relied  upon  in  support  of  rights  of 
sovereignty.^ 

The  basis  of  this  doctrine  or  practice  was  that  the  occupant  of 
any  given  spot  might  be  supposed  within  a  reasonable  time  to 
seek  to  extend  his  dominion  over  the  surrounding  country,  be- 
cause such  an  extension  was  either  necessar}^  for  his  own  safety, 
or  incidental  to  his  natural  development.  The  application  of 
such  a  theory  was,  however,  full  of  difficulties.  Questions  arose 
concerning  the  length  of  time  within  which  a  State  might  exer- 
cise the  exclusive  right  to  extend  its  territory  to  the  surrounding 
country.  There  were  disputes  also  with  respect  to  the  extent  of 
the  area  over  which    such  a  right  existed,  and  concerning  the 

1  Messrs.  Pinckney  and  Monroe,  American  Plenipotentiaries,  to  Don  Pedro 
Cevallos,  April  20,  1805,  Am.  State  Pap.,  For.  Rel.,  II,  662,  664 ;  Brit,  and  For. 
State  Pap.  (1817-1818),  323,  327;  Mr.  Gallatin,  American  Plenipotentiary, 
to  Mr.  Addington,  British  Plenipotentiary,  Dec.  19,  1826,  Am.  State  Pap., 
For.  Rel.,  VI,  666,  667. 

In  the  course  of  his  correspondence  with  Mr.  John  Quincy  Adams,  Secy, 
of  State,  relating  to  the  boundaries  of  the  territory  acquired  by  the  United 
States  in  the  Louisiana  Purchase,  Don  Luis  de  Onis,  in  1818,  declared :  "These 
Dominions  and  Settlements  of  the  Crown  of  Spain  were  connected  with  those 
which  she  had  on  the  Gulf  of  Mexico,  that  is  to  say,  with  those  of  Florida  and 
the  Coasts  of  the  Province  of  Texas,  which  being  on  the  same  Gulf,  must  be 
acknowledged  to  belong  to  Spain,  since  the  whole  circumference  of  the  Gulf 
was  hers,  which  property,  incontestably  acquired,  she  had  constantly  main- 
tained among  her  Possessions,  not  because  she  occupied  it  throughout  its 
whole  extent,  which  was  impossible,  but  on  the  principle  generally  recognized, 
that  the  property  of  a  lake  or  narrow  Sea,  and  that  of  a  Country,  however 
extensive,  provided  no  other  Power  is  alreadj^  established  in  the  interior,  is 
acquired  by  the  occupation  of  its  principal  points."  Am.  State  Pap.,  For. 
Rel.,  IV,  455-456;  Brit,  and  For.  State  Pap.  (1817-1818),  425-428. 

168 


EXTENT  OF  POSSESSION.     CONTINUITY  [§  101 

method  of  adjusting  conflicting  claims  to  broad  and  uninhabited 
areas  separating  rival  settlements.^ 

As  long  as  portions  of  the  American  continents  remained  in 
fact  unoccupied,  and  until  the  boundaries  marking  the  limits 
of  the  territories  of  opposing  States  were  fairly  established  by 
treaty,  there  was  little  agreement  as  to  the  principles  which  should 
govern  the  solution  of  these  problems.  Respect  for  claims  to 
lands  actually  unoccupied  by  civilized  man  was  as  frequently 
maintained  by  the  sword  as  by  any  other  means. 

It  was  natural,  however,  that  statesmen  should  enunciate  prin- 
ciples in  justification  of  claims  which  they  asserted.  In  the  con- 
troversy between  the  United  States  and  Spain  respecting  the 
boundaries  of  the  Louisiana  territory,  the  American  Plenipoten- 
tiaries, Messrs.  Pinckney  and  Monroe,  April  20,  1805,  relied 
upon  the  following  principles  which  were  later  supported  by 
Mr.  John  Quincy  Adams,  as  Secretary  of  State,  in  1818 : 

The  first  of  these  is,  that  when  any  European  Nation  takes 
possession  of  any  extent  of  Sea  Coast,  that  possession  is  under- 
stood as  extending  into  the  interior  Country,  to  the  sources 
of  the  Rivers  emptying  within  that  Coast,  to  all  their  branches, 
and  the  Country  they  cover,  and  to  give  it  a  right  in  exclusion 
of  all  other  Nations  to  the  same. 

The  second  is,  that  whenever  one  European  Nation  makes 
a  discovery  and  takes  possession  of  any  portion  of  that  Con- 
tinent, and  another  afterwards  does  the  same  at  some  distance 
from  it,  where  the  Boundary  between  them  is  not  determined 
by  the  principle  above  mentioned,  the  middle  distance  becomes 

1  Declared  Lord  Salisbury  in  a  despatch  May  18,  1896,  for  Mr.  Olney,  Secy, 
of  State:  "All  the  great  nations  in  both  hemispheres  claim,  and  are  prepared 
to  defend,  their  right  to  vast  tracts  of  territory  which  they  have  in  no  sense 
occupied,  and  often  have  not  fully  explored.  The  modem  doctrine  of  '  Hinter- 
land', with  its  inevitable  contradictions,  indicates  the  unformed  and  unstable 
condition  of  international  law  as  applied  to  territorial  claims  resting  on  con- 
structive occupation  or  control."  For.  Rel.  1896,  228,  230  ;  Moore,  Arbitra- 
tions, I,  974.  In  reply  June  22,  1896,  Mr.  Olney  said  in  part:  "The  ac- 
cepted rule  as  to  the  area  of  territory  affected  by  an  act  of  occupation  in  a 
land  of  large  extent  has  been  that  the  crest  of  the  watershed  is  the  presumptive 
interior  limit,  while  the  flank  boundaries  are  the  limits  of  the  land  watered 
by  the  rivers  debouching  at  the  point  of  coast  occupied.  .  .  .  Unless  the 
treaties  looking  to  the  harmonious  partition  of  Africa  have  worked  some  change, 
the  occupation  which  is  sufficient  to  give  a  State  title  to  territory  cannot  be 
considered  as  undetermined.  It  must  be  open,  exclusive,  adverse,  con- 
tinuous, and  under  claim  of  right.  It  need  not  be  actual  in  the  .sense  of  in- 
volving the  possessio  pedis  over  the  whole  area  claimed.  The  only  possession 
required  is  such  as  is  reasonable  under  all  the  circumstances  —  in  view  of  the 
extent  of  territory  claimed,  its  nature,  and  the  uses  to  which  it  is  adapted  and 
is  put  —  while  mere  constructive  occupation  is  kept  within  bounds  by  the 
doctrine  of  contiguity."  For.  Rel.  1896,  232,  235 ;  Moore,  Arbitrations,  I,  976, 
980. 

169 


§  101]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

such  of  course.     The  justice  and  propriety  of  this  rule  is  too 
obvious  to  require  illustration. 

A  third  rule  is,  that  whenever  any  European  Nation  has 
thus  acquired  a  right  to  any  portion  of  Territory  on  that  Con- 
tinent, that  right  can  never  be  diminished  or  affected  by  any 
other  Power,  by  virtue  of  purchases  made,  by  grants  or  con- 
quests, of  the  Natives  within  the  Limits  thereof.^ 

Mr.  Calhoun,  Secretary  of  State,  in  his  correspondence  with 
the  British  Minister  in  1844,  relating  to  the  Oregon  Dispute,  con- 
tended that  the  principle  of  continuity  furnished  a  just  founda- 
tion for  a  claim  of  ownership  to  unoccupied  lands  adjacent  to  those 
which  were  actually  occupied.^  By  virtue  thereof  he  maintained 
that  the  United  States  was  entitled  to  the  territory  on  its  western 
frontier  as  far  as  the  Pacific  Ocean  .^ 

1  Am.  State  Pap.,  For.  Rel.,  II,  662,  664;  Brit,  and  For.  State  Pap.  (1817- 
1818),  322,  327-328,  Moore,  Dig.,  I,  263. 

The  United  States  claimed  that  France,  by  virtue  of  the  explorations  and 
settlements  of  La  Salle  in  1681-1682,  along  the  Illinois  and  Mississippi  rivers, 
and  particularly  at  the  mouth  of  the  latter  stream,  acquired  title  to  the  Missis- 
sippi Valley.  It  was  also  claimed  that  the  establishment  by  La  Salle  in  168.5, 
of  the  settlement  at  the  Bay  of  Espiritu  Santo,  four  hundred  miles  west  of 
the  mouth  of  the  Mississippi,  which  was  destroyed  by  the  Indians  in  1689, 
and  which  the  French  never  sought  to  regain,  while  they  were  sovereign  of 
Louisiana,  was  still  within  the  constructive  possession  of  France  by  virtue 
of  its  retaining  the  mouth  of  the  Mississippi.  It  was  maintained,  therefore, 
that  the  boundary  line  between  the  territories  of  the  United  States  and  Spain 
should  be  along  the  River  Rio  Grande,  being  halfway  between  the  Bay  of 
Espiritu  Santo  and  the  most  easterly  Spanish  settlement,  notwithstanding 
the  fact  that  no  French  settlements  had  ever  been  permanently  established 
in  the  vicinity  of  the  Bay  of  Espiritu  Santo,  or  even  west  of  the  Red  River, 
and  in  spite  of  the  fact  that  the  Spanish  had  from  1690  continuously  (save 
during  their  own  ownership  of  Louisiana,  1763-1800)  maintained  settlements 
not  only  east  of  the  Rio  Grande,  but  even  within  a  .short  distance  of  the  Bay 
of  Espiritu  Santo.  Don  Pedro  Cevallos,  Spanish  Minister  of  State,  to  Messrs. 
Pinckney  and  Monroe,  April  13,  1805,  Am.  State  Pap.,  For.  Rel.,  II,  660; 
Brit,  and  For.  State  Pap.  (1817-1818),  315;  Messrs.  Pinckney  and  Monroe  to 
Don  Pedro  Cevallos,  Spanish  Minister  of  State,  April  20,  1805,  Am.  State 
Pap.,  For.  Rel.,  II,  662 ;  Brit,  and  For.  State  Pap.  (1817-1818),  322 ;  Don  Luis  de 
Onis,  Spanish  Minister,  to  Mr.  John  Quincv  Adams,  Secv.  State,  Jan.  5,  1818, 
Am.  State  Pap.,  For.  Rel.,  IV,  455 ;  Brit,  and  For.  State  Pap.  (1817-1818),  425 ; 
Mr.  Adams,  Secy,  of  State,  to  Don  Luis  de  Onis,  Spanish  Minister,  March  12, 
1818,  Am.  State  Pap.,  For.  Rel.,  IV,  468;  Brit,  and  For.  State  Pap.  (1817- 
1818),  461.  CJ.  criticism  of  the  position  of  the  United  States  in  Hall,  Higgins' 
7  ed.,  §  33. 

Concerning  the  reasoning  in  support  of  the  claim  of  the  United  States  to 
the  entire  region  drained  by  the  Columbia  River,  c/.  Mr.  Calhoun,  Secy,  of 
State,  to  Mr.  Pakenham,  British  Minister,  Sept.  3,  1844,  Brit,  and  For.  State 
Pap.,  XXXIV,  64. 

2  Brit,  and  For.  State  Pap.,  XXXIV,  64,  67-68,  Moore,  Dig.,  I,  264. 

'  It  was  contended  therefore  by  Mr.  Calhoun,  that  Great  Britain  had  claimed 
that  its  territorial  rights  extended  from  the  Atlantic  to  the  Pacific,  and  had 
definitely  asserted  them  in  patents  and  charters  to  the  Plvmouth  Companv, 
1620;  Massachu-setts  Bay,  1628;  Connecticut,  1662:  Carolina,  1663,  and 
Georgia,  1764.  Papers  relating  to  the  Treatv  of  Washington,  V,  21-22, 
Moore,  Dig.,  I,  265.     By  Article  VII  of  the  treaty  of  1763,  between  Great 

170 


GENERAL  ACT  OF  THE  BERLIN  CONFERENCE  OF  1885     [§  102 

It  suffices  to  observe  that  at  the  present  time  any  theory  of 
constructive  occupation  is  regarded  with  increasing  disapproba- 
tion, because  of  the  absence  of  considerations  which  in  earlier 
days  appeared  to  strengthen  the  equities  of  States  which  in 
particular  cases  invoked  such  a  doctrine. 

(c) 

§  102.    General  Act  of  the  Berlin  Conference  of  1885. 

According  to  Articles  XXXIV  and  XXXV  of  the  General  Act 
of  the  Berlin  Conference  of  1885,  providing  for  the  acquisition  of 
rights  of  property  and  control  on  the  African  coast,  there  was  re- 
quired of  any  power  which  should  take  possession  of  a  tract  of 
land,  or  assume  a  protectorate  therein,  a  notification  addressed 
to  the  other  signatory  powers  to  enable  them,  if  need  be,  to  make 
good  any  claims  of  their  own.  Furthermore,  the  obligation  was 
recognized  by  the  signatory  powers  to  assure  the  establishment  of 
authority  in  the  regions  occupied  "sufficient  to  protect  existing 
rights  and,  as  the  case  may  be,  freedom  of  trade  and  of  transit 
under  the  conditions  agreed  upon."  ^     It  was  also  understood 

Britain  and  France,  the  former  yielded  all  claims  and  all  chartered  rights 
of  its  colonies  west  of  the  Mississippi.  Rec.  I,  104-106.  According  to 
Mr.  Calhoun,  the  effect  of  the  treaty  was  the  extension  beyond  the  Mississippi 
of  the  right  of  continuity  previously  claimed  by  Great  Britain  and  transferred 
by  it  to  France.  "Certain  it  is,"  he  declared,  "that  France  had  the  same 
right  of  continuity,  in  virtue  of  her  possessions  in  Louisiana,  and  the  extinguish- 
ment of  the  right  of  England  by  the  Treaty  of  1763,  to  the  whole  country  west 
of  the  Rocky  Mountains,  and  lying  west  of  Louisiana,  as  against  Spain,  which 
England  had  to  the  country  westward  of  the  Alleghany  Mountains,  as 
against  France,  with  this  difference,  that  Spain  had  nothing  to  oppose  to  the 
claim  of  France  at  the  time  but  the  right  of  discovery  (and  even  that  England 
has  since  denied),  while  France  had  opposed  to  the  right  of  England  in  her 
case,  that  of  discovery,  exploration  and  settlement.  It  is  therefore  not  at  all 
surprising  that  France  should  claim  the  country  west  of  the  Rocky  Mountains 
(as  may  be  inferred  from  her  maps),  on  the  same  principle  that  Great  Britain 
had  claimed  and  dispossessed  her  of  the  regions  west  of  the  Alleghany ;  or 
that  the  United  States,  as  soon  as  they  had  acquired  the  rights  of  France, 
should  assert  the  same  claim,  and  take  measures  immediately  after  to  explore 
it,  with  a  view  to  occupation  and  settlement.  But  since  then  we  have  strength- 
ened our  title  by  adding  to  our  own  proper  claims  and  those  of  France,  the 
claims  also  of  Spain,  by  the  Treaty  of  Florida,  as  has  been  stated."  Brit,  and 
For.  State  Pap.,  XXXIV,  64,  69;  another  portion  of  this  communication  is 
contained  in  Moore,  Dig.,  I,  264. 

See,  in  this  connection,  Westlake,  2  ed.,  I,  115-117,  who  declares  that  the 
limits  described  in  the  British  charters  to  the  Colonies  "must  be  taken  as 
intended  to  operate  between  the  Colonies  and  the  Crown  and  between  ad- 
joining Colonies;  no  pretension  of  so  far-reaching  an  extent  was  advanced 
by  Great  Britain  against  foreign  States." 

'  For  the  proceedings  of  the  Berlin  Conference  and  the  text  of  the  General 
Act,  see  French  Yellow  Book,  Affaires  du  Congo  et  de  L'Afnque  Occidentale, 
1885;    Brit,  and  For.  State  Pap.,  LXXVI,  4. 

Mr.    Bayard,  Secy,  of  State,  to  Mr.  von  Alvensleben,  German  Minister. 

171 


§  102]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

that  the  notification  to  be  given  required  a  certain  determination 
of  the  limits  of  the  tracts  of  land  occupied,  and  that  the  powers 
interested  could  always  demand  such  information  as  they  might 
deem  necessary  for  the  protection  of  their  rights.^ 

(d) 
§  103.    Declaration   of  the  Institute  of  International  Law 
of  1888. 

In  1SS8,  the  Institute  of  International  Law  made  a  Declaration 
regarding  the  occupation  of  territories.  It  was  there  announced 
that  occupation  by  sovereign  right  could  not  be  recognized  as 
effective  unless  it  complied  with  the  following  conditions :  first, 
the  taking  possession  in  the  government's  name  of  territory  en- 
closed within  certain  limits ;  and  secondly,  official  notification 
of  taking  possession.  It  was  declared  that  the  taking  of  possession 
was  accomplished  by  the  establishment  of  a  responsible  local 
power,  provided  with  sufficient  mieans  to  maintain  order  and 
assure  the  regular  exercise  of  its  authority  within  the  limits  of  the 
territory  occupied,  and  that  those  means  should  be  taken  over 
from  the  institutions  existing  therein.  It  was  prescribed  that 
such  notifica'tion,  which  was  to  be  given  either  by  publication  in 
the  form  customarily  employed  in  each  State  for  the  notification 
of  official  acts,  or  through  the  diplomatic  channel,  should  contain 
an  approximate  statement  of  the  limits  of  the  occupied  territory.^ 

This  declaration  was  regarded  by  Westlake  as  a  summing  up  of 
the  existing  state  of  enlightened  opinion  at  the  time  when  he  wrote.^ 

April  6,  1885.  For.  Rel.  1885,  442 ;  also  Moore,  Dig.,  I,  268.  CJ.  Westlake, 
2  ed.,  I,  106-111. 

^  See  declaration  of  the  Commission  annexed  to  Protocol  No.  8  of  Berlin 
Conference,  French  Yellow  Book,  .4  ff aires  du  Congo  et  de  L'Afrique  Occi- 
dentale,  1885,  220. 

2  Annuaire,  X,  201 ;  J.  B.  Scott,  Resolutions,  86.  It  was  also  declared 
that  these  rules  were  applicable  in  the  case  where  a  power,  without  assuming 
entire  sovereignty  over  a  territory,  and  while  maintaining,  with  or  without 
restrictions,  the  local  administrative  autonomy,  placed  the  territory  under 
its  protection.     Art.  II. 

3  Westlake,  2  ed.,  I,  112.  This  edition  was  published  in  1910.  The  Act 
of  Congress  of  August  18,  1856,  providing  for  the  assertion  of  dominion  by  the 
United  States  over  the  Guano  Islands,  was  based  on  the  principle  that  such 
islands  were  capable  of  acquisition  when  they  were  outside  of  the  lawful  juris- 
diction of  any  other  government,  and  not  occupied  by  its  citizens ;  and  tha,t 
the  assertion  of  ownership  by  the  United  States  should  be  dependent  on  evi- 
dence of  occupation  and  possession,  as  well  as  the  discovery  of  the  deposits 
of  guano,  by  its  own  citizens.  Rev.  Stat.,  §§  5570-5578,  also  tj.  S.  Comp.  Stat. 
Ann.,  Vol.  IV,  §§3916-3934.  Cf.  Brock,  Atty.-Gen.,  9  Ops.  Attvs.-Gen., 
364,  367,  Moore,  Dig.,  I,  558  and  560;  Jones  v.  United  States,  137  U.  S.  202. 
See,  in  general,  statement  in  Moore,  Dig.,  I,  556-580,  comprising  an  exhaus- 
tive note  (569-580),  containing  information  respecting  guano  deposits  dis- 
covered by  American  citizens. 

172 


CONTIGUOUS  ISLANDS  [§  104 

It  is  believed  to  give  expression  to  the  principle  which  should 
hereafter  be  respected  in  any  cases  where  there  may  be  an  op- 
portunity and  an  attempt  by  occupation  to  bring  into  being  a 
right  of  property  and  control. 

(e) 
§  104.    Contiguous  Islands. 

On  principle,  unoccupied  islands  in  the  open  sea  and  beyond 
the  territorial  waters  of  a  State  are  not,  by  reason  of  their  relative 
proximity  to  its  shores,  to  be  deemed  a  part  of  its  domain.^  Such 
was  the  contention  of  the  United  States  in  1852,  with  respect  to 
the  Lobos  Islands  off  the  coast  of  Peru.^ 

At  the  present  time,  however,  a  maritime  power  would  neglect 
its  interests  should  it  fail  to  assert  some  form  of  control  over  an 
island  in  such  contiguity  to  its  ocean  coast  as  to  afford  a  menace 
thereto  if  acquired  by  a  foreign  State ;  and  such  assertion 
might  be  regarded  as  equivalent  to  occupation,  even  though  the 
island  remained  uninhabited.  The  dangers  from  adverse  pos- 
session, due  in  part  to  the  range  of  modern  guns  and  the  poten- 
tialities of  various  instruments  of  war  when  offered  lodgment  near 
enemy  territory,  have  served  to  widen  the  distance  from  the  main- 
land within  which  an  island  would  doubtless  now  be  regarded  as 
both  politically  and  geographically  appurtenant  to  it.  It  is  not 
believed,  therefore,  that  the  case  is  to  be  anticipated  which  will 
present  an  instance  of  effective  adverse  occupation  as  against  an 

^  See,  in  this  connection,  Westlake,  2  ed.,  I,  118-120. 

2  Declared  Mr.  Webster,  Secretary  of  State,  in  a  communication  to  Mr. 
Osma,  Peruvian  Minister,  Aug.  21,  1852:  "The  Lobos  Islands  lying  in  the 
open  ocean,  so  far  from  any  continental  possessions  of  Peru  as  not  to  belong 
to  that  country  by  the  law  of  proximity  or  adjacent  position,  has  the  govern- 
ment of  that  country  exercised  such  unequivocal  acts  of  absolute  sovereignty 
and  ownership  over  them  as  to  give  to  her  a  right  to  their  exclusive  possession, 
as  against  the  United  States  and  their  citizens,  by  the  law  of  undisputed  pos- 
session?" Sen.  Ex.  Doc,  No.  109,  32  Cong.,  1  Sess.,  12.  Moore,  Dig.,  I. 
575,  note. 

It  may  be  observed  that  the  distance  from  the  Peruvian  coast  of  the  nearest 
Lobos  Island  (Lobos  de  Tierra)  is  nine  nautical  miles,  and  of  the  furthest 
therefrom  (Lobos  de  Afuera)  thirtv-three  nautical  miles.  See  Quincy  Wright, 
"Territorial  Propinquity",  Am.  J.,  XII,  519,  520-521. 

See,  also,  Brief  of  Mr.  J.  H.  Ashton.  counsel  for  the  United  States,  in  case 
of  Gowen  and  Copeland  v.  Venezuela,  No.  16,  United  States  and  Venezuelan 
Claims  Commission,  under  convention  of  Dec.  5,  1885,  Moore,  Dig.,  I,  265- 
267;  also  position  of  the  United  States  in  the  case  of  Aves  Island,  Senate 
Ex.  Doc.  No.  10,  36  Cong.,  2  Sess.,  225  ;  also  other  documents  cited  in  Moore, 
Dig.,  I,  571.  Compare  protocol  concluded  by  Great  Britain,  Germany  and 
Spain  March  7,  1885,  relative  to  the  sovereignty  of  Spain  over  the  Sulu  Archi- 
pelago, Brit,  and  For.  State  Pap.,  LXXVI,  58.  Concerning  the  claims  of 
Spain  to  the  Falkland  Islands  and  the  position  taken  by  Great  Britain  and 
France,  respectively,  c/.  Calvo,  5  ed.,  I,  417-424. 

173 


§  104]     GENERAL   RIGHTS   OP   PROPERTY   AND    CONTROL 

enlightened  maritime  power  with  respect  to  a  contiguous  island 
which  could  be  fairly  deemed  of  military  importance  to  it. 

(4) 
§  105.    Accretion. 

By  virtue  of  a  principle  known  as  that  of  accretion,  a  State 
may  be  said  to  acquire  with  respect  to  the  outside  world  an  original 
and  exclusive  right  of  sovereignty  over  lands  which,  imperceptibly 
in  their  process  of  formation,  are  added  to  its  coasts  and  shores, 
or  which  so  come  into  being  as  islands  appendant  thereto.^  No 
formal  acts  of  appropriation  are  required.^ 

When  the  appendage  is  on  the  ocean  coast,  neither  the  process 
of  formation  nor  the  length  of  time  involved  in  it  appears  to  be  a 
matter  of  international  concern.^  The  creation  of  the  right  of 
sovereignty,  and  likewise  the  question  of  ownership,  are  not  de- 
pendent upon  whether  the  new  land  is  due  to  the  work  of  men's 
hands,  or  formed  by  the  action  of  water  or  attributable  to  other 
natural  causes.     Nor  is  it  important  whether  it  is  in  fact  of  sudden 

1  The  Anna,  5  C.  Rob.  373.  "  The  doctrine  of  the  English  cases  is,  that 
accretion  is  an  addition  to  land  coterminous  with  the  water,  which  is  formed 
so  slowly  that  its  progress  cannot  be  perceived,  and  does  not  admit  of  the  view 
that,  in  order  to  be  accretion,  the  formation  must  be  one  not  discernible  by 
comparison  at  two  distinct  points  of  time."  Blatchford,  J.,  in  Jeflferis  v. 
East  Omaha  Land  Companv,  134  U.  S.  178,  193. 

See  County  of  St.  Clair  v.  Lovingston,  23  Wall.  46,  68,  where  Mr. 
Justice  Swayne  declared :  "In  the  light  of  the  authorities  alluvion  may 
be  defined  as  an  addition  to  riparian  land,  gradually  and  imperceptibly  made 
by  the  water  to  which  the  land  is  contiguous.  It  is  different  from  reliction, 
and  is  the  opposite  of  avulsion.  The  test  as  to  what  is  gradual  and  imper- 
ceptible in  the  sense  of  the  rule  is,  that  though  the  witnesses  may  see  from 
time  to  time  that  progress  has  been  made,  they  could  not  perceive  it  while 
the  progress  was  going  on.  Whether  it  is  the  effect  of  natural  or  artificial  causes 
makes  no  difference.     The  result  as  to  the  ownership  in  either  case  is  the  same." 

2  The  term  accretion  employed  by  English  writers  with  reference  to  the 
acquisition  of  newly  made  lands  was,  notwithstanding  its  Latin  derivation, 
not  borrowed  from  the  Roman  law.  Neither  in  the  Institutes,  nor  in  the  works 
of  its  classic  commentators  is  there  any  word  of  similar  origin  used  with  such 
a  signification.  The  term  accretio  of  that  law  was  always  employed  in  con- 
nection with  another  branch  of  law.  The  word  alluvio  was  used  in  the  In- 
stitutes to  describe  the  process  by  which  land  was  imperceptibly  formed  by 
the  action  of  the  water;  and  the  rules  of  ownership  applicable  thereto  were 
confined  chiefly  to  situations  where  the  formation  occurred  within  a  river. 
The  earliest  writers  on  international  law  borrowed  the  principle  of  alluvio, 
in  so  far  as  it  was  applicable  to  international  disputes  relating  to  newly  made 
lands.  Inasmuch,  however,  as  those  disputes  related  to  broader  problems  than 
those  for  which  the  Roman  law  made  provision,  the  term  alluvio  was  incapable 
of  describing  generally  either  a  process  or  a  legal  principle  concerning  the  ac- 
quisition of  newly  made  lands,  however  and  wherever  formed.  The  author 
acknowledges  his  indebtedness  to  Prof.  Roscoe  Pound  and  to  Prof.  Albert 
Kocourek  for  guidance  enabling  him  to  make  this  statement. 

3  Opinion  of  Sir  William  Scott,  in  The  Anna,  5  C.  Rob.  373,  385b-385d; 
Opinion  of  Mr.  Justice  Holmes,  in  Ker  v.  Couden,  223  U.  S.  268,  concerning 
the  public  ownership  of  accessions  by  accretion  on  the  ocean  coast  in  the 
Philippine  Islands. 

174 


CONQUEST  [§  106 

and  perceptible  growth,  manifesting  an  instance  of  avulsion  rather 
than  accretion.^ 

When,  however,  new  land  comes  into  being  along  the  shore  of 
a  river  constituting  an  international  boundary,  the  facts  to  which 
its  existence  are  attributable  may  have  significance.  Even  in 
such  a  situation  causes  productive  of  accretion  seem  to  have  no 
effect  upon  the  creation  of  a  right  of  property  and  control  in  favor 
of  the  State  to  whose  territory  such  land  is  appendant,  subject 
to  the  general  limitation  that  no  riparian  proprietor  may  by  its 
own  acts,  as  through  artificial  works,  lawfully  alter  the  boundary.^ 

When  new  lands  are  gradually  and  imperceptibly  formed  within 
the  course  of  a  river,  whether  attached  either  to  the  shore  or  arising 
as  islands,  the  right  of  sovereignty  is  in  that  State  on  whose  side 
of  the  boundary  line  the  formation  occurs.^ 

§  106.    Conquest.  ^^^ 

The  term  conquest  appears  to  be  used  to  refer  to  at  least  two 
distinct  processes  or  activities :  first,  that  by  which  a  military 
commander  in  time  of  war  gains  possession  of  hostile  territory  and 
subjects  it  and  its  occupants  to  his  control ;  ^  and  secondly,  that 
by  which  a  victorious  belligerent  compels  its  enemy  to  surrender 
the  sovereignty  of  territory  belonging  to  it. 

It  is  not  believed  that  conquest  indicates  a  mode  by  which  a 
right  of  sovereignty  comes  into  being,  or  by  virtue  of  which  an 
existing  one  is  transferred.^  If  the  inhabitants  of  the  territory 
concerned  are  an  uncivilized  people,  deemed  to  be  incapable  of 
possessing  a  right  of  property  and  control,  the  conqueror  may,  in 
fact,  choose  to  ignore  their  title,  and  proceed  to  occupy  the  land 
as  though  it  were  vacant.     In  such  case  the  conquest  refers  merely 

1  Thus  it  is  possible  where  land  comes  into  being  on  the  ocean  coast  by  some 
sudden  act  of  violence,  however  induced,  for  a  right  of  property  and  control 
to  be  created  simultaneously.  That  the  case  is  one  of  avulsion  rather  than  of 
accretion  seems  to  be  unimportant. 

It  should  be  observed  that  the  litigated  cases  in  the  United  States  and  else- 
where, which  do  not  involve  decisions  as  to  the  extent  of  the  right  of  a  mari- 
time State  under  international  law  to  assert,  as  against  any  other  State,  sov- 
ereignty or  ownership  over  new  lands  which  are  added  by  various  processes 
to  its  ocean  coast,  are  not  to  be  regarded  as  purporting  to  mark  the  limits  of 
the  claim. 

2  See  Thalweg,  infra,  §  138. 

'  St.  Louis  ;;.  Rutz,  138  U.  S.  226,  250,  251.     Also,  Islands,  infra,  §  139. 

*  Story,  J.,  in  United  States  v.  Rice,  4  Wheat.  246,  254.  Declares  Oppen- 
heim :  "Conquest  is  the  taking  possession  of  enemy  territory  through  mili- 
tary force  in  time  of  war."     2  ed.,  I,  §  236. 

Belligerent  Occupation,  Nature  and  Effect,  infra,  §  688. 

^  Westlake,  "The  Nature  and  Extent  of  the  Title  by  Conquest",  Col- 
lected Papers,  475,  reprinted  from  Law  Quar.  Rev.,  XVII,  392-401. 

175 


§  106]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

to  the  military  or  physical  effort  by  means  of  which  occupation 
becomes  possible.  If,  on  the  other  hand,  the  vanquished  enemy 
is  a  State,  or  a  country  whose  exclusive  rights  as  sovereign  over 
the  territory  have  been  respected,  the  conqueror  is  not,  at  least 
at  the  present  time,  regarded  as  deriving  rights  of  property  and 
control  from  the  military  achievement.  Although  the  victor  may 
be  able  to  bring  about  a  transfer  of  rights  of  sovereignty  by 
some  appropriate  action,  the  bare  possession  of  such  power  does 
not  suffice  to  effect  a  change.  The  State  whose  armies  have 
gained  control  of  enemy  territory  and  occupied  it  may  have  no 
design  of  doing  more.  In  such  case  it  would  be  unreasonable  to 
shift  the  title,  and  transform  the  conqueror  into  the  territorial 
sovereign,  even  against  its  will.  Thus  in  practice,  upon  the  with- 
drawal of  a  belligerent  occupant,  the  normal  government  of  the 
State  resumes  automatically  the  exercise  of  its  rights  as  sovereign 
which  are  deemed  to  have  been  suspended  rather  than  transferred 
during  the  period  of  occupation.^ 

If,  however,  the  conqueror  so  desires,  it  may,  in  theory,  retain 
as  the  fruits  of  victory  the  territory  which  is  held,  and  acquire 
the  sovereignty  thereof.  The  common  method  of  so  doing  is  by 
compelling  a  transfer  embodied  in  an  appropriate  treaty.^ 

The  conqueror  may  in  fact  resort  to  a  different  procedure.  It 
may  formally  annex  the  occupied  yet  hostile  territory  to  its  own 
domain.  By  so  doing  it  announces  to  the  outside  world  both 
the  design  to  acquire  the  rights  of  property  and  control  over  the 

^  Referring  to  the  belligerent  occupation  by  Great  Britain  of  Castine  during 
the  war  of  1812,  Mr.  Justice  Story  declared  in  the  case  of  the  United  States 
V.  Hayward :  "It  could  only  be  by  a  renunciation  in  a  treaty  of  peace,  or  by 
possession  so  long  and  permanent,  as  should  afford  conclusive  proof,  that  the 
territory  was  altogether  abandoned  by  its  sovereign,  or  had  been  irretrievably 
subdued,  that  it  could  be  considered  as  incorporated  into  the  dominions  of 
the  British  sovereign."  2  Gall.  485,  501.  Marshall,  C.  J.,  in  The  American 
Insurance  Company  v.  Canter,  declared:  "The  usage  of  the  world  is,  if  a 
nation  be  not  entirely  subdued,  to  consider  the  holding  of  conquered  terri- 
tory as  a  mere  military  occupation,  until  its  fate  shall  be  determined  at  the 
treaty  of  peace."  1  Pet.  511,  542.  Cf.,  also,  United  States  v.  Rice,  4  Wheat. 
246,  254;   Fleming  v.  Page,  9  How.  603,  614-616. 

"It  is  quite  true  that  down  to  the  middle  of  the  eighteenth  century  the 
practice  of  belligerent  nations  was  in  accord  with  the  theory  that  all  kinds 
of  property,  coming  into  the  hands  of  one  of  the  parties  to  the  war,  vested  in 
him  as  conqueror  and  were  subject  to  his  absolute  disposal,  so  that  he  might 
even  ahenate  or  cede  the  occupied  territory  while  the  issue  of  hostilities  re- 
mained undecided.  [Citing  Hall,  Int.  Law,  4th  ed.,  482  et  seq.]  But  since 
that  period  this  rule  has  been  either  abandoned  or  subjected  to  verj'  con- 
siderable limitations  both  in  theory  and  in  practice."  Moore,  Arbitrations, 
II,  1607. 

^  Thus  in  concluding  peace  with  Spain  in  1898,  the  United  States  secured 
by  cession  rights  of  sovereignty  over  territory  which  was  then  within  its  pos- 
session. See,  for  example.  Art.  II  of  treaty  with  Spain,  of  Dec.  10,  1898, 
Malloy's  Treaties,  II,  1691. 

176 


IN  GENERAL  [§  107 

area  involved,  and  the  achievement  of  that  end  solely  by  its  own 
act.  This  process  is  described  as  subjugation.^  It  betokens  not 
only  the  acquisition  of  rights  of  sovereignty  by  virtue  of  sheer 
power,  but  also  unconcern  on  the  part  of  the  conqueror  as  to  the 
lack  of  any  agreement  manifesting  acceptance  of  the  change  by 
its  foe.^  Subjugation,  in  so  far  as  it  is  employed  with  respect  to 
territory  already  subjected  to  rights  of  property  and  control  by 
the  country  which  is  ousted  therefrom,  cannot  be  regarded  as 
indicative  of  a  method  by  which  a  right  of  sovereignty  comes  into 
being  or  is  created.  It  manifests  rather  a  mode  by  which  an  exist- 
ing right  of  property  and  control  is  taken  away  from  one  State 
(possibly  by  its  very  extinction)  and  lodged  in  another. 

It  seems  important  to  observe  that  at  the  present  time  there 
appears  to  be  much  less  interest  on  the  part  of  the  family  of  na- 
tions in  the  mode,  howsoever  described,  by  which  a  conqueror 
compels  its  enemy  to  yield  rights  of  sovereignty,  than  in  the 
fundamental  inquiry  whether  the  conqueror  should  be  deemed  to 
possess  a  right,  limited  solely  by  its  power  to  enforce  its  will.^ 
Inasmuch  as  it  is  in  connection  with  the  transfer  rather  than  the 
creation  of  rights  of  property  and  control  that  the  problem  arises, 
it  is  discussed  elsewhere.'* 


Succession 

(1) 
Cession 

§  107.   In  General.  ^^^ 

Cession  is  a  process  by  which  rights  of  property  and  control 
are  transferred  by  one  State  to  another.     The  terms  of  transfer 

1  Oppenheim.  2  ed.,  I,  §§  236-241.  "As  in  the  case  of  other  modes  of  ac- 
quisition by  unilateral  acts,  it  is  necessary  to  the  accomplishment  of  conquest 
that  intention  to  appropriate  and  ability  to  keep  shall  be  combined.  Intention 
to  appropriate  is  invariably,  and  perhaps  necessarily,  shown  by  a  formal 
declaration  or  proclamation  of  annexation."     Hall,  Higgins'  7  ed.,  §  204. 

2  "Thus  after  the  war  with  Austria  and  her  Allies  in  1866,  Prussia  subju- 
gated the  territories  of  the  Duchy  of  Nassau,  the  Kingdom  of  Hanover,  the 
Electorate  of  Hesse-Cassel,  and  the  Free  Town  of  Frankfort-on-the-Main, 
and  Great  Britain  subjugated  in  1900  the  territories  of  the  Orange  Free  State 
and  the  South  African  Republic."     Oppenheim,  2  ed.,  I,  §  239. 

In  the  course  of  its  war  with  Turkey,  Italy,  by  a  law  of  February  25,  1912, 
following  a  Royal  Decree  of  November  5,  1911,  annexed  Tripoli  and  Cyrenaica, 
placing  them  under  its  full  sovereignty.    Collezione  Celerifera,  1912,  p.  82. 

^  Declared  President  Wilson  in  an  address  before  the  Congress  Jan.  8,  1918  : 
"The  day  of  conquest  and  aggrandizement  is  gone  by."  Official  Bulletin, 
Vol.  II,  No.  202. 

*  Cession,  Vahdity,  The  Principle  of  Self-Determination,  infra,  §  108. 

177 


§  107]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

are  embodied  in  an  agreement  which  commonly  assumes  the  form 
of  a  treaty.  There  is  always  manifested  an  act  of  surrender  by  a 
grantor,  and  one  of  acceptance  by  a  grantee.  In  this  respect 
cession  differs  from  relinquishment,  a  process  which  is  perfected 
by  the  appropriate  act  of  the  relinquisher,  and  which  thus  obviates 
the  necessity  of  action  by  a  grantee.^ 

An  act  of  cession  may  not  in  fact  be  described  as  such  in  the 
agreement  which  sets  forth  the  transfer.  Any  terms  suffice  which 
express  the  design  of  a  grantor  to  give  over  its  rights  to  a  grantee, 
and  of  a  grantee  to  take  what  is  yielded.^  The  interested  parties 
are  not,  however,  likely  to  have  recourse  to  a  treaty  purporting 
to  be  one  of  cession  unless  it  is  agreed  that  the  right  of  sovereignty 
has  not  already  been  transferred  to  the  proposed  grantee  by  some 
other  process,  and  that  it  is  desirable,  if  not  essential,  that  there 
be  a  formal  surrender  of  that  right  by  a  grantor.  A  cession  usually 
implies,  therefore,  respect  for  the  actual  as  well  as  theoretical 
lodgment  of  rights  of  property  and  control  in  the  State  called  upon 
to  divest  itself  thereof.  When  in  consequence  of  the  operations 
of  a  war  those  rights  have  been  in  fact  wrung  by  force  from  a 
vanquished  State,  the  only  requirement  at  the  conclusion  of  the 
conflict  may  be  some  appropriate  acknowledgment  of  what  has 
taken  place  .^ 

^  Relinquishment,  infra,  §  115. 

^  The  treaties  by  virtue  of  which  the  United  States  has  acquired  rights  of 
sovereignty  through  acts  of  cession  on  the  part  of  foreign  States  have  commonly 
referred  to  the  mode  of  transfer  as  one  of  cession.  As  a  recent  instance,  cf. 
Art.  I  of  convention  with  Denmark  of  Aug.  4,  1916,  providing  for  the  cession 
of  the  Danish  West  Indies,  U.  S.  Treaty  Series,  No.  629,  Am.  J.,  XI,  Supp., 
53.  It  should  be  noted,  however,  that  the  treaty  of  peace  with  Mexico  of 
Feb.  2,  1848  (Guadalupe  Hidalgo),  whereby  the  United  States  acquired  much 
territory  from  Mexico,  merely  referred  to  the  transfer  by  a  declaration  (Art.  V ; 
MaUoy's  Treaties,  I,  1109)  indicating  how  the  new  boundary  should  run.  In 
another  portion  of  the  same  treaty  reference  to  the  transfer  was  made 
in  connection  with  the  treatment  to  be  accorded  "Mexicans  now  established 
in  territories  previously  belonging  to  Mexico,  and  which  remain  for  the  future 
within  the  limits  of  the  United  States,  as  defined  by  the  present  treaty." 
Art.  VIII. 

^  In  the  treaty  of  peace  with  Germany  of  June  28,  1919,  the  new  boundaries 
of  that  State  were  minutely  described  so  as  to  exclude  (subject  to  specified 
reservations)  from  Germany  the  territory  contiguous  thereto  and  of  which  the 
sovereignty  was,  by  any  process,  deemed  to  be  transferred.  (Part  II,  Arts.  27- 
30.)  Acts  amounting  to  cession  were  elsewhere  variously  described.  By 
Art.  45  there  was  a  definite  cession  of  the  coal  mines  in  the  Saar  Basin  to 
France.  There  was  also  an  agreement  to  cede  "all  rights  and  title"  to  France 
over  such  part  of  the  Saar  Basin  as  might  be  specified  by  the  League  of 
Nations,  in  the  event  of  a  decision  of  the  inhabitants  thereof  in  favor  of  union 
with  France  at  the  termination  of  fifteen  years  from  the  coming  into  force  of 
the  treaty.  (Chap.  Ill  of  Annex  following  Art.  50.)  According  to  Art.  51, 
the  territories  of  Alsace-Lorraine,  which  had  been  "ceded"  to  Germany  in 
1871,  were  "restored  to  French  sovereignty"  as  from  the  date  of  the  armistice, 
Nov.  11,  1918.     In  numerous  Articles  it  was  declared  that  Germany  "re- 

178 


THE  PRINCIPLE   OF  SELF-DETERMINATION       [§  108 

(b) 
Validity 

(i) 

§  108.   The  Principle  of  Self -Determination. 

The  validity  of  a  transfer  of  rights  of  sovereignty  as  set  forth 
in  a  treaty  of  cession  does  not  appear  to  be  affected  by  the  motives 
which  have  impelled  the  grantor  to  surrender  its  rights.  Such 
action  may  have  been  induced  by  fear  of  the  consequences  of  re- 
sisting the  demands  of  a  victorious  foe,  or  merely  by  the  offer  of 
the  grantee  to  pay  an  ample  price  for  the  territory  concerned.^ 

nounces  all  rights  and  title  over  the  territory"  within  specified  limits,  "in 
favor  of "  a  particular  State,  or  in  that  of  the  principal  Allied  and  Associated 
Powers. 

Obviously  a  so-called  renunciation,  even  in  favor  of  a  particular  party, 
signifies  nothing  more  than  the  yielding  to  that  party  of  a  claim  of  right, 
valid  or  invalid,  and  for  what  it  is  worth,  with  respect  to  the  territory  concerned. 
It  is  the  understanding  of  the  parties  in  the  light  of  the  circumstances  of  the 
particular  case,  which  must  determine  whether  the  act  of  renunciation  con- 
stitutes a  mode  by  which  existing  rights  of  sovereignty  are  transferred,  or  is 
merely  a  convenient  method  of  waiving  claims  adverse  to  a  transfer  already 
effected,  and  of  acknowledging  its  validity.  In  the  German  treaty  of  peace 
the  renunciations  appear  oftentimes  to  have  been  regarded  as  amounting 
to  cessions.  This  seems  to  have  been  the  case,  for  example,  with  reference 
to  the  renunciation  in  favor  of  the  Czechoslovak  State  of  rights  and  title 
over  a  defined  portion  of  Silesian  territory  (Art.  83),  as  well  as  that  in  favor 
of  Belgium  over  the  specified  territory  of  Prussian  Moresnet  (Art.  33),  and 
that  in  favor  of  the  principal  Allied  and  Associated  Governments  over  the 
territory  embracing  the  City  of  Danzig  (Arts.  100  and  108).  In  certain  other 
cases,  however,  where  the  agreement  to  renounce  was  followed  by  arrange- 
ments for  a  plebiscite,  the  definitive  transfer  of  sovereignty  was  apparently 
to  await  the  manifestation  of  the  popular  will,  and  then  to  be  established 
by  a  new  and  appropriate  frontier.  {Cf.  for  example.  Arts.  34-37,  respecting 
the  Kreise  of  Eupen  and  Malmrdy.)  In  the  case  of  Schleswig  the  very  re- 
nunciation was  limited  in  scope  to  territory  north  of  a  line  to  be  fixed  in  con- 
formity with  the  will  of  the  inhabitants.  (Art.  110.)  It  should  be  observed 
that  one  of  the  later  and  important  financial  clauses  (Art.  254)  provided  that 
"the  Powers  to  which  German  territory  is  ceded"  shall  undertake  to  make 
certain  payments.  Reference  to  this  undertaking  was  constantly  made  in 
earlier  portions  of  the  treaty  in  connection  with  Articles  declaratory  of  re- 
nunciations of  rights  and  title.  See,  for  example.  Art.  39  (renunciations  to 
Belgium),  Art.  86  (renunciations  to  the  Czechoslovak  State),  and  Art.  92 
(renunciations  to  Poland). 

According  to  Art.  119,  Germany  renounced  in  favor  of  the  principal  Allied 
and  Associated  Powers  all  her  rights  and  titles  over  her  overseas  possessions. 
This  general  renunciation  was  doubtless  regarded  as  equivalent  to  cession. 
Generally  speaking  Germany  seems  to  have  been  called  upon,  in  accepting 
the  terms  of  the  treaty,  to  renounce  her  rights  and  title  over  territory  as  a 
means  of  transferring  lands  of  which  she  was  then  acknowledged  to  be  the 
de  jure  sovereign,  whether  or  not  they  had  then  been  wrested  from  her  posses- 
sion, and  as  a  means  also  of  facilitating  the  transfer  of  those  to  be  subjected 
to  the  operation  of  a  plebiscite,  and  with  respect  to  which  the  final  determina- 
tion of  the  question  of  sovereignty  was  temporarily  to  remain  in  abevance. 

'  Cf.  Agreements  between  States,  Validity,  Consent,  infra,  §  493. 

179 


§  108]     GENERAL   RIGHTS    OF   PROPERTY    AND    CONTROL 

According  to  the  practice  of  States  up  to  the  beginning  of  the 
twentieth  century,  no  requirement  of  international  law  was  deemed 
to  forbid  or  denounce  as  internationally  illegal  a  transfer  which 
was  opposed  by  the  inhabitants  of  the  territory  ceded. ^  Nor  were 
any  particular  grounds  of  opposition  regarded  as  constituting  a 
legal  obstacle  deterring  a  proposed  grantee  from  acquiring  what 
it  desired,  especially  as  the  fruits  of  victory.  Little  heed  was  paid 
to  the  question  whether  lands  occupied  by  inhabitants  of  a  single 
race  or  nationality  should,  notwithstanding  their  opposition,  be 
transferred  to  a  foreign  State  whose  territory  was  contiguous,  and 
whose  nationals  inhabiting  it  were  of  an  alien  race.  Nor  was  any 
economic  detriment  to  the  territory  to  be  transferred,  however 
certainly  to  be  anticipated  as  the  consequence  of  cession,  believed 
to  offer  a  decisive  ground  for  restraint.  In  a  word,  the  national 
domain  of  a  State,  regardless  of  the  character  or  degree  of  civiliza- 
tion of  the  occupants,  and  in  spite  of  the  requirements  of  their 
race  or  their  vital  economic  needs,  was  oftentimes  dealt  with  as 
property  subject  to  exploitation,  so  long  as  the  individuals  in  con- 
trol of  the  reins  of  government  could  be  persuaded  or  compelled 
to  conclude  and  ratify  an  appropriate  treaty.  It  was  not  supposed 
that  any  equities  of  the  inhabitants,  although  due  to  natural  as- 
pirations based  upon  the  most  solid  ethnological  and  geographical 
foundation,  were  entitled  to  respect  by  the  conqueror  demanding 
the  cession  of  coveted  lands. 

Such  equities  and  the  theory  to  which  they  gave  birth  sprang, 
however,  from  fundamental  principles  of  justice,  and,  therefore, 
could  not  be  obliterated  even  when  they  were  ignored.  More- 
over, they  took  such  deep  root  in  the  minds  of  peoples  and  nation- 
alities who  were  oppressed  by  the  prevailing  practice,  as  to  rebuke 
the  whole  family  of  nations  for  indolence,  and  to  punish  it  for  its 
unconcern. 

It  was  the  operation  of  the  great  European  treaties  of  the  nine- 
teenth century  which  gradually  led  statesmen  to  see  the  error  of 
their  ways ;  but  the  light  did  not  fully  dawn  upon  them  until 
the  outbreak  of  The  World  War.  Arrangements  of  the  Congress 
of  Vienna  of  1815,  of  the  Treaty  of  Frankfort  of  1871,  as  well  as 
the  Treaty  of  Berlin  of  1878,  in  assigning  territory  to  alien  rulers, 

'  According  to  Hall:  "The  principle  that  the  wishes  of  a  population  are 
to  be  consulted  when  the  territory  which  they  inhabit  is  ceded  has  not  been 
adopted  into  international  law,  and  cannot  be  adopted  into  it  until  title  by 
conquest  has  disappeared."  Higgins'  7  ed.,  §  9,  p.  48,  where  the  learned 
editor,  writing  in  the  year  1917,  appends  in  a  note  the  statement  that  "  A 
plebiscite  of  the  inhabitants  of  the  ceded  territory  may  be  politically  advisable, 
but  is  not  legallj'  necessary." 

180 


THE  PRINCIPLE  OF  SELF-DETERMINATION      [§  108 

and  with  contempt  for  the  ethnological  and  economic  claims  of 
the  inhabitants,  created  causes  of  unrest  which  the  lapse  of  time 
merely  served  to  magnify.  These  not  only  defied  reasonable 
hopes  of  permanent  peace,  in  spite  of  the  effort  to  preserve  it  by 
force  of  arms,  but  also  encouraged  war  as  the  only  potent  means 
by  which  old  and  yet  still  festering  wounds  could  be  healed.^ 

Between  the  years  1914  and  1920,  statesmen  became  fully  aware 
of  the  disturbing  effect  upon  the  general  peace  which  was  likely 
to  ensue  if  a  victorious  belligerent  were  permitted  to  suffer  no 
restraint  in  enforcing  the  transfer  to  itself  of  hostile  territories. 
The  nature  and  extent  of  the  equities  of  the  inhabitants  were  per- 
ceived, and  the  value  of  respect  for  them  as  a  means  of  preserving 
tranquillity  was  acknowledged.  The  welfare  of  the  society  of 
nations,  in  so  far  as  it  was  associated  with  the  removal  of  causes 
of  war,  was  obviously  opposed  to  yielding  free  rein  to  a  conqueror. 
This  general  international  interest  became  sufficiently  acute  to 
justify  united  effort  in  restraint  of  the  individual  State. 

While  it  may  be  as  yet  premature  to  declare  that  recognition 
of  the  international  interest  has  already  sufficed  to  establish  a 
rule  of  international  law  to  the  effect  that  the  validity  of  a  cession 
of  territory  depends,  under  any  circumstances,  upon  the  consent 
of  the  inhabitants  thereof,  recent  events  have  afforded  significant 
proof  of  the  readiness  of  important  States  to  respect  such  a  prin- 
ciple. Nor  is  it  to  be  doubted  that  their  example  and  influence 
will  develop  a  general  practice  serving  to  render  internationally 
illegal  attempts  to  disregard  it,  and  to  mark  with  precision  the 
grounds  on  which  the  inhabitants  of  territory  may  reasonably 
invoke  it. 

It  seems  worth  while  at  the  present  time  to  observe  certain 
recent  and  notable  manifestations  of  regard  for  the  principle, 
embracing  the  attitude  of  certain  American  statesmen  concern- 
ing it. 

Following  the  proposal  of  Mr.  Blaine,  then  Secretary  of  State, 
the  International  American  Conference  convening  at  Washington, 
1889-1890,  adopted  a  resolution  denouncing  the  validity  of  ces- 
sions of  territory  made  under  threats  of  war  or  in  the  presence  of 
an  armed  force.^ 

1  See,  in  this  connection,  Sir  Walter  G.  F.  Phillimore,  Bart,  (now  Lord 
Phillimore) ,  Three  Centuries  of  Treaties  of  Peace  and  Their  Teaching,  London, 
1917. 

2  Moore,  Dig.,  I,  292.  Also,  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Trcscot, 
No.  2,  Dec.  1,  1881,  with  respect  to  the  right  of  a  conqueror  to  demand  a 
cession  of  territory  from  its  foe.  For.  Rel.  1881,  143.     Compare  Mr.  Sherman, 

181 


§  108]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

In  his  address  to  the  Congress,  January  8,  1918,  announcing 
fourteen  points  as  a  proposed  basis  for  peace.  President  Wilson 
declared  that  the  adjustment  of  colonial  claims  should  be  based 
upon  a  strict  observance  of  the  principle  "that  in  determining  all 
such  questions  of  sovereignty  the  interests  of  the  populations  con- 
cerned must  have  equal  weight  with  the  equitable  claims  of  the 
government  whose  title  is  to  be  determined."  ^  In  an  address 
at  New  York,  September  27,  1918,  he  announced  that  one  of  the 
issues  of  the  existing  war  was,  whether  the  military  power  of  any 
nation  or  group  of  nations  should  be  suffered  to  determine  the 
fortunes  of  peoples  over  whom  they  had  no  right  to  rule  except 
the  right  of  force. ^ 

The  treaty  of  peace  with  Germany  of  June  28,  1919,  reflected  in 
some  degree  these  views.  Thus  there  was  express  recognition  of  the 
moral  obligation  to  redress  the  wTongs  done  by  Germany  in  1871, 
both  to  the  rights  of  France  and  to  the  wishes  of  the  population 

Secy,  of  State,  to  Mr.  Toru  Hoshi,  Japanese  Minister,  Aug.  14,  1897,  MS. 
Notes  to  Japanese  Legation,  I,  533,  535,  Moore,  Dig.,  I,  274. 

In  his  Annual  Message  of  Dec.  1,  1899,  President  McKinley  declared  with 
reference  to  the  cession  of  the  Philippine  Islands  to  the  United  States:  "I 
had  every  reason  to  believe,  and  I  still  believe,  that  this  transfer  of  sover- 
eignty was  in  accordance  with  the  wishes  and  the  aspirations  of  the  great 
mass  of  the  Filipino  people."     For.  Rel.  1899,  xliv,  Moore,  Dig.,  I,  531. 

1  Official  Bulletin,  Jan.  8,  1918,  Vol.  II,  No.  202.  In  the  same  address  the 
President  demanded  in  part  the  restoration  of  territories  occupied  by  the 
enemy,  the  readjustment  of  the  frontiers  of  Italy  "along  clearly  recognizable 
lines  of  nationality",  and  the  erection  of  an  independent  PoHsh  State  which 
should  include  the  territories  inhabited  by  indisputably  PoUsh  populations, 
and  which  through  free  access  to  the  sea  should  enjoy  an  economic  as  well  as 
political  independence.  Again,  he  urged  that  the  relations  of  the  several 
Balkan  States  should  be  determined  by  friendly  counsels  along  historically 
established  lines  of  allegiance  and  nationality',  and  that  their  political  and 
economic  independence  and  territorial  integrity  be  duly  guaranteed. 

2  Official  BuUetin,  Sept.  28,  1918,  Vol.  II,  No.  424.  It  will  be  recalled  that 
these  two  addresses  of  the  President  embodied  the  terms  on  which,  subject 
to  certain  qualifications,  the  United  States  and  the  belligerent  Powers  as- 
sociated with  it  announced  a  readiness  to  negotiate  peace  with  Germany.  Cf. 
communication  of  Mr.  Lansing,  Secy,  of  State,  to  Mr.  Sulzer,  Swiss  Minister 
at  Washington,  in  charge  of  Gernmn  interests,  Nov.  5,  1918,  Official  Bulletin, 
Nov.  6,  1918,  Vol.  II,  No.  456,  Am..  J.,  XIII,  Supp.,  95. 

Again,  in  his  statement  of  April  23,  1919,  concerning  the  dispute  over  Fiume, 
President  Wilson  vigorously  opposed  any  adjustment  which  would  place  that 
port  in  the  hands  of  a  Power  whose  sovereignty,  if  established  there  would, 
in  his  judgment,  inevitably  seem  foreign  rather  than  domestic,  or  identified 
with  the  commercial  and  industrial  life  which  the  port  would  serve.  He 
said:  "The  interests  are  not  now  in  question,  but  the  rights  of  peoples,  of 
States  new  and  old,  of  liberated  peoples  and  peoples  whose  rulers  have  never 
accounted  them  worthy  of  a  right ;  above  all,  the  right  of  the  world  to  peace 
and  to  such  settlements  of  interest  as  shall  make  peace  secure.  These,  and 
these  only,  are  the  principles  for  which  America  has  fought.  These,  and  these 
only,  are  the  principles  upon  which  she  can  consent  to  make  peace.  Only 
upon  these  principles,  she  hopes  and  believes,  will  the  people  of  Italy  ask 
her  to  make  p©ace."  Current  Hist.  Mag.,  X  (Aug.,  1919),  Part  I,  pp.  405- 
407. 

182 


THE  PRINCIPLE  OF  SELF-DETERMINATION         [§  109 

of  Alsace  and  Lorraine,  "which  were  separated  from  their  country 
in  spite  of  solemn  protests  of  their  representatives  at  the  Assembly 
of  Bordeaux."  There  was,  accordingly,  a  restoration  to  French 
sovereignty  of  what  had  been  ceded  to  Germany  in  1871.^  Ap- 
pended to  numerous  Articles  providing  for  the  renunciation  by 
Germany  of  its  rights  and  titles  over  other  specified  areas,  were 
arrangements  for  a  plebiscite  to  determine  whether  the  inhabitants 
desired  that  the  territory  concerned  should  remain  under  German 
sovereignty  or  pass  to  a  foreign  State.^  It  is  understood  that  in 
the  establishing  of  the  preliminary  boundaries  of  these  areas,  ex- 
traordinary effort  was  made  by  the  Allied  and  Associated  Powers 
to  ascertain  the  ethnological  and  economic  basis  of  the  claims  of 
the  inhabitants.^ 

§  109.    The  Same. 

In  a  joint  memorandum  from  the  Governments  of  the  United 
States,  France  and  Great  Britain,  to  the  Government  of  Italy,  of 

1  Art.  51  and  the  clause  prefatory  to  it. 

2  On  the  western  frontier  of  Germany  provisions  for  plebiscites  were  made 
with  respect  to  the  Kreise  of  Eupen  and  Malmedy  (Arts.  34-35),  and  the 
Saar  Basin,  at  the  termination  of  fifteen  years  from  the  coming  into  force 
of  the  treaty  (Chap.  Ill  of  Annex  following  Art.  50).  On  the  eastern  frontier 
provisions  for  plebiscites  were  made  with  respect  to  a  portion  of  Upper  Silesia 
(Art.  88,  and  Annex),  and  two  specified  areas  of  East  Prussia  (Arts.  94-97). 
According  to  Art.  109,  the  frontier  between  Germany  and  Denmark  was  to  be 
fixed  "in  conformity  with  the  wishes  of  the  population",  and  to  that  end  pro- 
vision was  made  for  a  plebiscite  in  a  definite  area  of  Schleswig. 

"All  'territories  inhabited  by  indubitably  Polish  populations'  have  been 
accorded  to  Poland.  All  territory  inhabited  by  German  majorities,  save  for 
a  few  isolated  towns  and  for  colonies  established  on  land  recently  forcibly 
expropriated  and  situated  in  the  midst  of  indubitably  Polish  territory,  has 
been  left  to  Germany. 

"Wherever  the  will  of  the  people  is  in  doubt  a  plebiscite  has  been  provided 
for.  The  town  of  Danzig  is  to  be  constituted  a  free  city,  so  that  the  inhabit- 
ants will  be  autonomous  and  not  come  under  Polish  rule,  and  will  form  no 
part  of  the  Polish  State 

"At  the  same  time,  in  certain  cases,  the  German  note  has  established  a 
case  for  rectification,  which  will  be  made ;  and  in  view  of  the  contention  that 
Upper  Silesia,  though  inhabited  by  a  two-to-one  majority  of  Poles  (1,250,000 
to  650,000,  1910,  German  census),  wishes  to  remain  a  part  of  Germany,  they 
are  willing  that  the  question  of  whether  Upper  Silesia  should  form  a  part 
of  Germany  or  of  Poland,  should  be  determined  by  the  vote  of  the  inhabit- 
ants themselves."  Letter  of  M.  Clemenceau  in  behalf  of  the  Allied  and 
Associated  Powers,  to  Count  von  Brockdorff-Rantzau,  President  of  the  German 
Peace  Commission  at  Paris,  June  16,  1919,  in  Tep\y  to  German  counter- 
proposals. Misc.  No.  4  (1919),  Cmd.  258,  6-7 ;  also  Current  Hist.  Mag.,  X,  part 
2,  July,  1919,  27. 

Compare,  however,  the  German  renunciations  in  favor  of  Japan  with  re- 
spect to  Shantung,  contained  in  Arts.  156-158. 

^  In  this  effort  the  United  States  played  a  conspicuous  part.  Commissions 
appointed  by  the  American  Delegation  at  the  Peace  Conference  were  sent 
to  enemy  territory,  and  there  made  investigations  of  archives  and  authentic 
documents  relative  to  the  validity  and  merits  of  geographical  and  ethnological 
claims. 

183 


§  109]     GENERAL    RIGHTS    OP   PROPERTY   AND    CONTROL 

December  9,  1919,  in  regard  to  the  adjustment  of  the  territorial 
dispute  with  the  Serb-Croat-Slovene  Kingdom,  it  was  declared 
that  "the  broad  principle  remains  that  it  is  neither  just  nor  ex- 
pedient to  annex  as  the  spoils  of  war  territories  inhabited  by  an 
alien  race,  anxious  and  capable  to  maintain  a  separate  national 
State."  ^  Inasmuch  as  he  deemed  that  revised  proposals  offered 
to  the  Jugoslav  delegation  by  the  British  and  French  Govern- 
ments January  14,  1920,^  failed  to  adhere  to  this  principle,  partly 
because  it  demanded  the  acceptance  as  an  alternative,  ol  the  Treaty 
of  London  of  1915,  believed  to  be  at  variance  with  the  idea  of 
self-determination.  President  Wilson  on  February  10,  1920,  made 
vigorous  protest.^  It  was  declared  in  his  behalf  that  if  it  did  not 
appear  feasible  to  secure  acceptance  of  the  concessions  offered 
in  the  memorandum  of  December  9,  he  would  be  obliged  to  "  take 
under  serious  consideration  the  withdrawal  of  the  treaty  with 
Germany  and  the  agreement  between  the  United  States  and  France 
of  June  28.  1919  ",  which  were  then  before  the  Senate.  Following 
a  reply  signed  by  the  Prime  Ministers  of  France  and  Great  Britain, 
February  17,  1920,  the  President  on  February  24,  1920,  addressed 
to  them  a  note  in  which  he  declared  it  to  be  "  the  central  principle 
fought  for  in  the  war  that  no  government  or  group  of  governments 

1  For  the  text  of  the  memorandum  see  Congressional  Record,  Feb.  27,  1920, 
LIX,  No.  66,  p.  3779. 

2  See  Congressional  Record,  Feb.  27,  1920,  LIX,  No.  66,  p.  3782,  for  a  para- 
phrase of  the  proposals  of  Jan.  14,  1920.  Cf.  also  inquiry  of  Mr.  Lansing, 
Secy,  of  State,  Jan.  19,  1920,  id. ;  also  statement  of  the  French  and  British 
Prime  Ministers  of  Jan.  23,  1920,  communicated  to  Mr.  Wallace,  American 
Ambassador  at  Paris,  for  transmission  to  Mr.  Lansing,  id.  It  should  be  ob- 
served that  the  United  States  was  not  a  party  to  the  propo.sals  of  Jan.  14, 
1920,  and  does  not  appear  to  have  been  informed  as  to  their  contents  until 
the  response  elicited  by  Mr.  Lansing's  inquiry. 

3  Congressional  Record,  Feb.  27,  1920,  LIX,  No.  66,  pp.  3783-3784.  It  was 
here  said  in  part :  "But  if  substantial  agreement  on  what  is  just  and  reason- 
able is  not  to  determine  international  issues,  if  the  country  possessing  the  most 
endurance  in  pressing  its  demands  rather  than  the  country  armed  with  a 
just  cause  is  to  gain  the  support  of  the  Powers,  if  forcible  seizure  of  coveted 
areas  is  to  be  permitted  and  condoned  and  is  to  receive  ultimate  justification 
by  creating  a  situation  so  difficult  that  decision  favorable  to  the  aggressor 
is  deemed  a  practical  necessity ;  if  deliberately  incited  ambition  is,  under  the 
name  of  national  sentiment,  to  be  rewarded  at  the  expense  of  the  small  and 
the  weak ;  if,  in  a  word,  the  old  order  of  things  which  brought  so  many  evils 
on  the  world  is  still  to  prevail,  then  the  time  is  not  yet  come  when  this  Govern- 
ment can  enter  a  concert  of  Powers  the  very  existence  of  which  must  depend 
upon  a  new  spirit  and  a  new  order.  The  American  people  are  willing  to  share 
in  such  high  enterprise,  but  many  among  them  are  fearful  lest  they  become 
entangled  in  international  policies  and  committed  to  international  obligations, 
foreign  alike  to  their  ideals  and  their  traditions.  To  commit  them  to  such  a 
policy  as  that  embodied  in  the  latest  Adriatic  proposals  and  to  obligate  them 
to  maintain  injustice  as  against  the  claims  of  justice,  would  be  to  provide  the 
most  solid  ground  for  such  fears.  This  Government  can  vmdertake  no  such 
grave  responsibility." 

184 


DEPENDENT  STATES  AS  GRANTORS  [§  110 

has  the  right  to  dispose  of  the  territory  or  to  determine  the  political 
allegiance  of  any  free  people."  ^  His  position  was  that  "  the  Powers 
associated  against  Germany  gave  final  and  irrefutable  proof  of 
their  sincerity  in  the  war"  by  writing  into  the  treaty  of  Versailles, 
Article  X,  of  the  Covenant  of  the  League  of  Nations,  which  was 
said  to  constitute  an  assurance  that  all  the  great  Powers  had  done 
what  they  had  compelled  Germany  to  do  —  to  forego  all  terri- 
torial aggression  and  all  interference  with  the  free  political  self- 
determination  of  the  peoples  of  the  world  .^  The  President  an- 
nounced that  he  would  make  no  objection  to  a  settlement  mutually 
agreeable  to  Italy  and  Jugoslavia  regarding  their  common  fron- 
tier in  the  Fiume  region,  provided  that  such  an  agreement  was  not 
made  on  the  basis  of  compensations  elsewhere  at  the  expense  of 
nationals  of  a  third  Power ;  and  he  suggested  that  the  results 
of  direct  negotiations  of  the  two  interested  Powers  would  fall 
within  the  scope  of  the  principle  of  self-determination. 


(ii) 

§  110.   Dependent  States  as  Grantors. 

A  dependent  State,  by  reason  of  the  relationship  which  it  bears 
to  the  State  on  which  it  depends,  doubtless  lacks  the  right,  with- 
out the  consent  of  the  latter,  to  cede  territory.  The  agreement 
establishing  that  relationship  may  definitely  refer  to  this  fact. 
Such  was  the  case  in  the  treaty  of  May  22,  1903,  declaratory  of  the 
fundamental  relations  to  exist  between  the  United  States  and 
Cuba,  and  fiixing  the  status  of  the  latter.^ 

1  Congressional  Record,  Feb.  27,  1920,  LIX,  No.  66,  p.  3786. 

^  It  should  be  observed  that  in  defending  their  proposals  of  Jan.  14,  1920, 
the  British  and  French  Governments  adverted  to  the  difficulty  of  reconciling 
ethnographic  with  other  considerations  in  general  treaties  of  peace,  and  de- 
clared that  this  was  recognized  by  President  Wilson  and  his  colleagues.  That 
ethnologic  reasons  could  not  be  the  only  ones  to  be  taken  into  account,  was 
said  to  be  "clearly  shown  by  the  inclusion  of  three  million  Germans  in  Czecho- 
slovakia and  the  proposals  so  actively  supported  by  the  United  States  delega- 
tion for  the  inclusion  within  Poland  of  great  Ruthenian  majorities,  exceeding 
three  million  five  hundred  thousand  in  number,  to  Polish  rule." 

3  Art.  I,  Malloy's  Treaties,  I,  363 ;  cf.  Oppenheim,  2  ed.,  I,  §  215.  On  Nov- 
ember 28,  1907,  a  treaty  was  concluded  in  behalf  of  Belgium  and  the  In- 
dependent State  of  the  Congo,  providing  for  the  cession  of  the  latter  to 
the  former.  Am.  J.,  Ill,  Supp.,  73.  See,  also,  a  decree  suppressing  the 
foundation  of  the  Crown,  March  5,  1908,  id.,  Ill,  87;  Belgian  laws  of  Oct. 
18,  1908,  approving  treaty  of  cession,  and  act  additional  thereto.  Arch. 
Dip.,  CVII,  291  and  293.  It  will  be  remembered  that  both  the  grantor  and 
the  grantee,  at  the  time  of  the  conclusion  of  the  treaty,  were  neutralized 
States. 

185 


§  111]     GENERAL   RIGHTS   OP   PROPERTY   AND    CONTROL 

(iii) 

§111.   Belligerent  States  as  Grantors. 

A  State  engaged  in  war  does  not  necessarily  lack  the  right  to 
make  a  valid  cession  of  territory  to  a  neutral.^  There  may  be 
circumstances  where,  as  between  the  neutral  grantee  and  the 
enemy  of  the  grantor,  there  are  no  equities  in  favor  of  the  latter. 
This  would  appear  to  be  true  where  the  transfer  of  rights  of  property 
and  control  offered  no  interference  with  the  military  or  naval 
operations  of  the  belligerents.  A  different  situation  would  arise, 
however,  if  the  territory  concerned  were  occupied  by  the  enemy  of 
the  grantor,  or  were  in  its  grasp,  or  were  within  the  zone  of  hos- 
tilities. In  such  case  the  lands  sought  to  be  transferred  by  virtue 
of  a  treaty  of  cession  would  doubtless  not  be  deemed  to  acquire  a 
neutral  character,  and  would  continue  to  be  regarded  for  bellig- 
erent purposes  as  hostile  territory. 

(c) 

§  112.   Protection  of  Territory  Pending  Cession. 

No  right  of  sovereignty  is  transferred  by  virtue  of  a  treaty  of 
cession  prior  to  the  ratification  of  the  agreement  by  both  the 
grantor  and  the  grantee.^  The  question  may  arise,  however, 
whether  the  prospective  grantee,  after  having  entered  into  negoti- 
ations for  the  cession,  and  having  authorized  the  signature  of  an 
appropriate  treaty  which  has  been  duly  ratified  by  the  grantor, 
acquires  any  right  to  protect  the  territory  concerned  against  ex- 
ternal aggression.  The  United  States  appears  to  have  taken 
the  stand  that  where  the  grantor  has,  by  its  act  of  ratification 
made  known  to  the  grantee,  placed  it  within  the  power  of  the 
latter  to  accept  the  contract  by  taking  appropriate  steps,  it  may, 
within  the  period  of  time  allotted  for  ratification,  share  with  the 
grantor  the  right  of  protection.^     Such  a  claim  is  based  on  the 

1  "That  the  right  of  a  neutral  to  procure  for  itself  by  a  bona  fide  transac- 
tion property  of  any  sort  from  a  belligerent  power  ought  not  to  be  frustrated 
by  the  chance  that  a  rightful  conquest  thereof  might  thereby  be  precluded. 
A  contrary  doctrine  would  sacrifice  the  just  interests  of  peace  to  the  unrea- 
sonable pretensions  of  war,  and  the  positive  rights  of  one  nation  to  the  possible 
rights  of  another."  Mr.  Madison,  Sec}\  of  State,  to  Messrs.  Livingston  and 
Monroe,  Plenipotentiaries  to  France,  May  28,  1803,  Am.  State  Pap.,  For.  Rel., 
II,  562. 

2  But  see  special  message  of  President  Tyler,  May  15,  1844,  respecting  the 
nature  of  the  right  of  the  United  States  to  protect  Texas  by  virtue  of  a 
treaty  which  ultimatelv  failed  to  receive  the  necessary  approval  of  the  Senate. 
Senate  Doc.  No.  341,  28  Cong.  1  Sess.,  74-81,  Moore,  Dig.,  I,  274-275. 

'  On  November  18,  1903,  a  convention  was  signed  in  behalf  of  the  United 

186 


PROPERTY  PASSING  BY  CESSION  [§  113 

theory  that  it  lies  within  the  power  of  the  contingent  grantee  to 
accept  an  unrevoked  offer,  and  that  at  least  before  the  expiration 
of  a  reasonable  interval,  outside  interference  tending  to  impair 
the  value  of  the  territory  concerned  may  be  justly  thwarted.^ 


(d) 

§  113.   Property  Passing  by  Cession. 

It  is  believed  that  on  principle  all  public  property  of  the  grantor, 
and  which  by  reason  of  its  nature  or  use  is  to  be  fairly  regarded  as 
belonging  within  the  territory  ceded,  should  pass  to  the  grantee. 
This  would  embrace  property  of  whatsoever  kind,  whether  movable 
or  immovable,  corporeal  or  incorporeal. 

The  matter  is  commonly  adjusted  by  the  terms  of  the  treaty  of 
cession.  As  these  have  oftentimes  been  of  narrow  scope,  the 
omissions  have  given  rise  to  controversy  as  to  what  the  law  of 
nations  prescribed.  Thus  the  treaties  of  the  nineteenth  century 
in  which  the  United  States  was  the  grantee  of  territory,  always 
acknowledged  that  various  forms  of  public  immovable  property 
such  as  buildings,  wharves,  barracks,  docks  and  other  like  struc- 
tures, together  with  the  public  domain  to  which  they  were  attached, 
were  embraced  in  the  cession.^     Doubt  remained,  however,  as 

States  and  Panama,  providing  for  the  grant  to  the  former  in  perpetuity  of 
the  use,  occupation  and  control  of  a  zone  of  territory  in  Panama,  in  order  to 
faciUtate  the  construction  of  an  interoceanic  ship  canal.  The  convention 
was  ratified  by  Panama  Dec.  2,  1903 ;  ratification  was  advised  by  the  Senate 
of  the  United  States  Feb.  23,  1904;  and  the  treaty  was  ratified  by  the 
President  Feb.  25,  1904.  For.  Rel.  1904,  543.  On  December  11,  1903,  Mr. 
Hay,  Secretary  of  State,  in  the  course  of  a  communication  to  General  Reyes 
of  Colombia,  said:  "Although  the  treaty  has  not  yet  become  law  by  the 
action  of  the  Senate,  there  are  already  inchoate  rights  and  duties  created  by  it 
which  place  the  responsibility  of  preserving  peace  and  order  on  the  Isthmus 
in  the  hands  of  the  Government  of  the  United  States  and  of  Panama,  even 
if  such  responsibilities  were  not  imposed  by  the  historical  events  of  the  last 
fifty  years."  For.  Rel.  1903,  279.  See  President  Polk,  Annual  Message, 
Dec.  2,  1845,  Senate  Doc.  No.  1,  29  Cong.,  1  Sess.,  5.  Moore,  Dig.,  I,  277; 
also  other  documents,  id.,  I,  274-280. 

^  It  must  be  clear  that  under  the  circumstances  stated  in  the  text  the 
grantor  must  be  regarded  as  free  to  withhold  its  final  approval  of  the  agree- 
ment and  incidentally  to  terminate  all  negotiations  and  abandon  the  transac- 
tion. When,  however,  the  grantor  remains  indisposed  to  do  so,  and  is  ready 
at  the  appropriate  time  to  exchange  ratifications  with  the  grantee  when  it 
shall  have  availed  itself  of  the  opportunity  to  complete  the  contract,  there 
arises  a  situation  when,  with  respect  to  other  States,  the  position  of  the  con- 
tingent or  prospective  grantee  appears  to  be  fortified. 

^  See,  for  example.  Art.  VIII  of  the  treaty  of  peace  with  Spain,  Dec.  10, 
1898,  Malloy's  Treaties,  II,  1692.  Cf.  also  Art.  II  of  treaty  with  France  for 
the  cession  of  Louisiana,  April  30,  1803,  id.,  I,  509;  Art.  II  of  treaty  with 
Spain  respecting  the  cession  of  the  Floridas,  Feb.  22,  1819,  id.,  II,  1652;  Art. 
II  of  treaty  with  Russia  for  the  cession  of  Alaska,  March  30,  1867,  id.,  1522. 

187 


§  113]     GENERAL   RIGHTS    OF   PROPERTY    AND    CONTROL 

to  the  fate  of  heavy  ordnance  such  as  fixed  cannon.^  Moreover 
there  appears  to  have  been  no  design  to  include  generally  public 
movable  property. 

As  a  matter  of  expediency,  in  the  normal  case  of  a  cession  the 
terms  of  which  are  not  dictated  by  the  exigencies  of  war  between 
the  parties  to  the  transaction,  it  is  useful  that  the  agreement  should 
have  the  broadest  possible  scope,  embracing  all  forms  of  the  public 
property  of  the  grantor,  subject  to  such  reservations  as  are  specified. 
The  convention  between  the  United  States  and  Denmark  provid- 
ing for  the  cession  of  the  Danish  West  Indies,  and  concluded 
August  4,  1916,  is  illustrative.     It  was  there  announced  that 

In  all  of  the  foregoing  Articles  the  cession  embraced  documents  or  archives 
referring  exclusively  to  the  sovereignty  over  the  territory  ceded.  See  es- 
pecially the  provisions  in  this  regard  in  Art.  VIII  of  the  treaty  with  Spain 
of  Dec.  10,  1898. 

The  same  Article  further  provided  that  neither  relinquishment  nor  ces- 
sion, as  the  case  inight  be,  could  "in  any  respect  impair  the  property  or  rights 
which  by  law  belong  to  the  peaceful  possession  of  property  of  all  kinds,  of 
.  provinces,  municipalities,  public  or  private  establishments,  ecclesiastical  or 
civic  bodies,  or  any  other  associations  having  legal  capacity  to  acquire  and 
possess  property  in  the  aforesaid  territories  renounced  or  ceded,  or  of  private 
individuals,  of  whatsoever  nationalitv  such  individuals  may  be."  Cf.  Articles 
V  and  IX  of  the  Russo-Japanese  Treaty  of  Portsmouth,  Aug.  23  (Sept.  5), 
1905,  For.  Rel.  1905,  824. 

^  Art.  II  of  the  treaty  of  April  30,  1803,  with  France,  contained  no  specific 
provision  with  reference  to  cannon,  which,  according  to  the  subsequent  action 
of  the  contracting  parties,  were  not  deemed  to  pass  to  the  grantee.  Moore, 
Dig.,  I,  281,  and  documents  there  cited.  After  the  cession  of  the  Floridas 
to  the  United  States,  the  grantee  permitted  the  removal  of  cannon.  Per- 
mission was  given  in  consideration  of  the  release  by  Spanish  authorities  of  the 
duty  of  provisioning  the  troops  whose  transportation  to  Spain  had  been  under- 
taken by  the  United  States.  See  documents,  id.,  282-284,  especially,  Mr. 
Adams,  Secy,  of  State,  to  Mr.  Nelson,  Minister  to  Spain,  April  28,  1823,  MS. 
Inst.  U.  S.  Ministers,  IX,  183,  227.  The  treaty  of  cession  of  Feb.  22,  1819, 
made  no  provision  as  to  the  matter.  The  inventories  of  property  delivered 
to  the  United  States  in  pursuance  of  Art.  II  of  the  treaty  with  Russia  of 
March  30,  1867,  providing  for  the  cession  of  Alaska  (which  embraced  all 
public  buildings,  fortifications  and  barracks),  included  certain  forts  with  their 
armaments.  Moore,  Dig.,  I,  285,  and  documents  cited.  The  Commissioners 
who  negotiated  the  Spanish-American  treaty  of  peace  of  Dec.  10,  1898,  were 
unable  to  agree  as  to  the  disposition  of  certain  public  property  of  Spain  in 
the  Island  of  Cuba  and  adjacent  Spanish  Islands,  consisting  of  artillery  and 
fixed  batteries  and  fortifications,  as  well  as  fixtures  and  other  property  thereto 
belonging.  Id.,  287.  The  treaty  contained  no  provision  as  to  the  matter. 
With  respect,  however,  to  heavy  guns  and  armaments  in  the  Philippines  it 
was  agreed  that  "Stands  of  colors,  uncaptured  war  vessels,  small  arms,  guns 
of  all  calibres,  with  their  carriages  and  accessories,  powder,  ammunition,  live- 
stock, and  materials  and  supplies  of  all  kinds,  belonging  to  the  land  and  naval 
forces  of  Spain  in  the  Philippines  and  Guam,  remain  the  property  of  Spain. 
Pieces  of  heavy  ordnance,  exclusive  of  field  artillery,  in  the  fortifications  and 
coast  defences,  shall  remain  in  their  emplacements  for  the  term  of  six  months, 
to  be  reckoned  from  the  exchange  of  ratifications  of  the  treaty ;  and  the  United' 
States  may,  in  the  meantime,  purchase  such  material  from  Spain,  if  a  satis- 
factory agreement  between  the  two  Governments  on  the  subject  shall  be 
reached."  Art.  V,  Malloy's  Treaties,  II,  1692.  Cf.  also,  Moore,  Dig.,  I, 
288-289,  and  documents  cited. 

188 


PROPERTY  PASSING  BY  CESSION  [§114 

This  cession  includes  the  right  of  property  in  all  public, 
government,  or  crown  lands,  public  buildings,  wharves,  ports, 
harbors,  fortifications,  barracks,  public  funds,  rights,  franchises, 
and  privileges,  and  all  other  public  property  of  every  kind  or 
description  now  belonging  to  Denmark  together  with  all  ap- 
purtenances thereto. 

In  this  cession  shall  also  be  included  any  government  archives, 
records,  papers  or  documents  which  relate  to  the  cession  or  the 
rights  and  property  of  the  inhabitants  of  the  islands  ceded, 
and  which  may  now  be  existing  either  in  the  islands  ceded  or  in 
Denmark.  Such  archives  and  records  shall  be  carefully  pre- 
served, and  authenticated  copies  thereof,  as  may  be  required, 
shall  be  at  all  times  given  to  the  United  States  Government 
or  to  the  Danish  Government,  as  the  case  may  be,  or  to  such 
properly  authorized  persons  as  may  apply  for  them.^ 

It  was  agreed,  however,  by  way  of  reservation,  that  the  arms 
and  military  stores  existing  in  the  islands  at  the  time  of  the  cession 
and  belonging  to  the  Danish  Government,  should  remain  its  prop- 
erty, and  be  removed  by  it,  unless  part  of  it  were  sold  to  the  United 
States.^  It  was  likewise  agreed  that  the  movables,  especially 
silver  plate  and  pictures  which  might  be  found  in  the  government 
buildings  in  the  islands  ceded  and  belonging  to  the  Danish  Govern- 
ment, should  remain  its  property  and  be  duly  removed.^ 

§114.    The  Same. 

According  to  the  treaty  of  peace  concluded  with  Germany 
June  28,  1919,  the  Powers  to  which  German  territory  was  ceded 
were  to  acquire  "all  property  and  possessions  situated  therein 
belonging  to  the  German  Empire  or  to  the  German  States."  The 
value  of  the  acquisitions  was  to  be  fixed  by  the  Reparation  Com- 
mission, and  paid  by  the  State  acquiring  the  territory  to  that 

1  Art.  I,  Treaty  Series,  No.  629,  Am.  J.,  XI,  Supp.,  53. 

^  It  was  declared  to  be  understood,  however,  that  flags  and  colors,  uni- 
forms and  such  arms  or  military  articles  as  were  marked  as  being  the  property 
of  the  Danish  Government  should  not  be  included  in  such  purchase. 

^  Art.  III.  Also  Art.  II,  where  it  was  announced  that  "this  cession  does 
not  in  any  respect  impair  private  rights  which  by  law  belong  to  the  peaceful 
possession  of  property  of  aU  kinds  by  private  individuals  of  whatsoeyer  na- 
tionality, by  municipalities,  public  or  private  establishments,  ecclesiastical 
or  civic  bodies,  or  any  other  associations  having  legal  capacity  to  acquire  and 
possess  property  in  the  islands  ceded. 

"The  congregations  belonging  to  the  Danish  National  Church  shall  re- 
tain the  undisturbed  use  of  the  churches  which  are  now  used  by  them,  to- 
gether with  the  parsonages  appertaining  thereunto  and  other  appurtenances, 
including  the  funds  allotted  to  the  churches." 

189 


§  114]     GENERAL    RIGHTS   OF    PROPERTY    AND    CONTROL 

Commission  for  the  credit  of  the  German  Government  on  account 
of  the  sums  due  for  reparation.  The  property  thus  described  was 
to  be  deemed  to  include  all  the  property  of  the  Crown,  the  Empire 
or  the  States,  and  the  private  property  of  the  former  German 
Emperor  and  other  royal  personages.^  In  a  word,  the  cession  was 
to  embrace  every  form  of  property,  but  subject  to  payment  to  be 
credited  in  diminution  of  the  vast  sums  which  by  way  of  repara- 
tion Germany  was  obliged  to  undertake  to  pay.  Such  payments 
or  credits  were  excepted,  however,  in  the  case  of  property  in  Alsace- 
Lorraine,  in  view  of  the  terms  on  which  that  territory  had  been 
ceded  to  Germany  in  1871 ,  and  in  the  case  of  property  or  possessions 
in  lands  ceded  under  the  peace  treaty  to  Belgium.^  It  was  also 
provided  that  all  property  and  possessions  belonging  to  the  German 
Empire  or  to  the  German  States,  within  any  of  the  former  German 
territories,  including  colonies,  protectorates  or  dependencies,  ad- 
ministered by  a  mandatory  (under  the  terms  of  the  Covenant  of 
the  League  of  Nations),  should  be  transferred  with  the  territories 
to  the  Mandatory  Power  in  its  capacity  as  such,  and  that  no  pay- 
ment should  be  made  or  credit  given  to  Governments  in  considera- 
tion of  the  transfer.^  Thus  in  general,  while  the  terms  of  the 
several  cessions  were  rendered  broadly  comprehensive,  and  that 
regardless  of  the  various  forms  of  property  concerned,  the  duty 
to  make  compensation  for  what  was  transferred  was  made  to  de- 
pend upon,  or  arranged  according  to,  the  nature  of  the  equities 
of  the  particular  grantee  as  against  the  grantor,  especially  derived 
from  the  relation  of  such  grantee  to  the  territory  ceded."* 

1  Art.  256.  Also  Art.  107,  relative  to  property  situated  within  the  City 
of  Danzig. 

2  Art.  256. 

'  Arts.  257,  120.     Cf.  Art.  XXII  of  the  Covenant  of  the  League  of  Nations. 

It  should  be  observed  also  that  in  Art.  92  of  the  treaty  it  was  provided  that 
in  fixing  under  Art.  256  the  value  of  the  property  and  possessions  belonging 
to  the  German  Empire  and  to  the  German  States  within  specified  territory 
transferred  to  Poland,  the  Reparation  Commission  should  exclude  from  the 
valuation,  buildings,  forests  and  other  State  property  which  belonged  to  the 
former  Kingdom  of  Poland.  These  Poland  was  to  acquire  free  of  all  costs  and 
charges. 

See  also,  the  provision  in  Art.  130  respecting  the  cession  to  China  of  vari- 
ous forms  of  public  property  belonging  to  the  German  Government  other 
than  diplomatic  or  consular  residences  or  premises,  and  situated  in  the  Ger- 
man concessions  at  Tientsin  and  Hanlcow  or  elsewhere  in  Chinese  territory. 
Also  the  specifications  relative  to  German  Governmental  property  in  Shan- 
tung, and  expressed  in  Arts.  156-158. 

■*  It  may  be  observed  that  certain  clauses  of  the  treaty  made  special  pro- 
vision for  the  surrender  by  the  grantor  to  the  grantee  of  archives  and  docu- 
ments of  every  kind  relative  to  the  several  forms  of  administration  of  the  terri- 
tory transferred.  See,  for  example,  Art.  38  relative  to  territory  to  be  trans- 
ferred to  Belgium,  Art.  52  relative  to  Alsace-Lorraine,  and  Art.  158  relative  to 
Shantung. 

190 


RELINQUISHMENT  [§  115 

(2) 
§  115.   Relinquishment. 

Relinquishment  may  be  described  as  a  process  by  which  a 
State  gives  up  its  rights  of  property  and  control  over  territory, 
without  simultaneously  attempting  to  transfer  them  to  another, 
or  to  designate  its  successor.  Relinquishment  is  perfected  by  the 
appropriate  act  of  the  relinquisher.  It  does  not  contemplate  the 
acceptance  of  any  grant  by  a  grantee.^ 

In  a  broad  sense  it  may  be  said  that  a  State  relinquishes  its 
rights  of  sovereignty  over  territory  whenever,  by  any  means,  it 
gives  them  up  or  renounces  its  claim  to  them,  whether,  for  example, 
by  abandonment,  or  by  the  recognition  of  the  independence  of  a 
former  colony  which  has  established  by  force  its  dominion  over 
lands  in  its  possession.  The  term  relinquishment  is  believed, 
however,  in  so  far  as  it  refers  to  the  succession  to  rights  of  sover- 
eignty, to  have  a  narrower  and  technical  signification.  In  nego- 
tiations for  peace  with  Spain  in  1898,  the  Commissioners  of  the 
United  States  took  the  position  that  relinquishment  occurs  solely 
when  a  State  or  a  country  regarded  as  capable  of  exercising  rights 
of  property  and  control  is  the  immediate  successor  to  the  title 
or  thing  relinquished.  In  this  respect  the  process  appears  to  differ 
sharply  from  that  known  as  abandonment,  which,  as  will  be  seen, 
is  one  whereby  such  rights  become  extinct.^  Moreover,  in  the 
case  of  relinquishment,  the  relinquishing  State  may,  until  the 
moment  of  giving  up  its  rights  over  the  territory  concerned,  claim 
in  fact  to  be  the  de  jure  sovereign  thereof.  Doubtless  the  valid- 
ity of  such  a  claim  will  depend  upon  the  circumstances  of  the 
particular  case.  It  must  be  clear,  however,  that  relinquishment 
may  betoken  the  surrender  of  actual  rights  of  sovereignty,  and 
that  when  it  does,  it  marks  the  transfer  thereof,  and,  simultane- 
ously, the  succession  thereto.^ 

1  This  distinction  was  sharply  drawn  in  the  protocol  of  armistice  between 
the  United  States  and  Spain  of  Aug.  12,  1898,  as  well  as  in  the  treaty  of  peace 
of  Dec.  10,  1898,  which  provided  for  the  Spanish  relinquishment  of  the  sov- 
ereignty over  Cuba,  and  the  cession  to  the  United  States  of  Porto  Rico  and 
other  islands.  Malloy's  Treaties,  II,  1688  and  1690.  See,  also,  position 
taken  by  the  American  Peace  Commissioners  at  Paris,  in  Annex  to  Protocol 
No.  5,  of  the  Conference  of  Oct.  14,  1898,  quoting  Escriche,  Dicrionario  de. 
Legislacion  y  J uris-prudencia ,  as  follows:  "The  relinquishment  differs  from 
the  cession  in  that  the  latter  requires  for  its  completion  the  concurrence  of 
the  wills  of  the  grantor  and  the  grantee  and  a  just  cause  for  the  transfer,  while 
the  former  is  perfect  with  only  the  will  of  the  relinquisher.  The  effect  of  the 
rehnquishment  is  confined  to  the  abdication  or  dropping  of  the  right  or  thing 
reUnquished.  The  effect  of  the  cession  is  the  conveyance  of  the  right  to  the 
grantee."     Sen.  Doc.  62,  55  Cong.,  3  Scss.  1,  46,  47. 

^  Abandonment,  infra,  §  1 19. 

^  Thus  there  would  appear  to  be  no  reason  to  employ  the  term  relinquish- 

191 


§  116]     GENERAL    RIGHTS   OF   PROPERTY    AND    CONTROL 

(3) 
§  116.   Prescription. 

By  operation  of  the  principle  known  as  that  of  prescription,  the 
uninterrupted  exercise  of  dominion  over  territory  for  a  sufficient 
length  of  time  by  one  State  is  deemed  to  destroy  the  value  of  ad- 
verse claims  of  sovereignty  preferred  by  any  other,  and  thus  to 
clothe  the  occupant  with  such  rights  of  property  and  control  as 
may  once  have  been  vested  in  such  a  claimant.^  These  rights 
do  not  seem  to  come  into  being  or  derive  their  origin  from  pre- 
scription .^  That  term  betokens  rather  the  means  by  which  they 
are  transferred  from  a  State  not  in  fact  exercising  them  to  another 
which  is  in  actual  possession.  It  thus  implies  that  when  the  exist- 
ing occupant  first  entered  into  that  possession,  the  territory  was 
already  subjected  to  a  dominion  which  had  been  productive  of 
rights  of  property  and  control,  and  was  not,  therefore,  at  that  time 
res  nullius,  or  available  for  acquisition  by  means  of  occupation.' 

Respect  for  the  principle  of  prescription  prevents  a  State  which 
may  have  long  slept  upon  its  rights,  from  retaining  a  solid  claim 
to  exercise  them  at  the  expense  of  a  foreign  occupant  whose  pos- 

ment  in  a  treaty  designed  to  express  the  bare  acknowledgment  by  a  former 
sovereign  of  a  transfer  of  rights  of  property  and  control  already  effected. 
After  a  successful  revolution,  the  treaty  of  peace  between  the  new  State  re- 
sulting therefrom  and  the  former  parent  State  logically  suffices  when  it  ex- 
presses recognition  of  the  independence  of  the  new  State.  See  Revolution, 
infra,  §  117. 

1  See,  generally,  Dana's  Wheaton,  239,  also  Dana's  Note  No.  101 ;  Hall, 
Higgins'  7  ed.,  §  36;  Westlake,  2  ed.,  I,  94-96;  Oppenheim,  2  ed.,  I,  §§  242- 
243;  Eugene  Audinet,  "De  la  Prescription  Acquisitif  en  Droit  Intertiational", 
Rev.  Gen.,  Ill,  313 ;  J.  H.  Ralston,  in  Am.  J.,  IV,  133 ;  Rhode  Island  v.  Massa- 
chusetts, 4  How.  591,  639;  Handly's  Lessee  v.  Anthony,  5  Wheat.  374,  376; 
Indiana  v.  Kentucky,  136  U.  S.  479,  509-512;  Virginia  v.  Tennessee,  148 
U.  S.  503,  522-524;  Louisiana  v.  Mississippi,  202  U.  S.  53-54;  Maryland  v. 
West  Virginia,  217  U.  S.  1,  41-44. 

Cf.  Mr.  Olney,  Secy,  of  State,  to  Sir  Julian  Pauncefote,  British  Ambassador, 
June  22,  1896,  For.  Rel.  1896,  232,  236,  Moore,  Dig.,  I,  297;  Opinion  of  Mr. 
Ralston,  Umpire  in  the  Gentini  Case,  before  the  Italian- Venezuelan  Commis- 
sion, Ralston's  Report  of  Venezuelan  Arbitrations  of  1903,  724;  Opinion  of 
Mr.  Little,  Commissioner,  in  Williams  v.  Venezuela,  No.  36,  United  States  and 
Venezuelan  Commission,  Convention  of  Dec.  5,  1885,  Moore,  Arbitrations, 
IV,  4181. 

"  The  doctrine  of  prescription  is  impliedly  recognized  in  the  various  treaty 
stipulations  which  have  been  made  for  the  joint  occupation  of  disputed  terri- 
tory, one  of  their  objects  in  such  case  being  to  negative  the  inference  of  title 
from  long-continued  possession  by  either  party  of  a  particular  portion  of  such 
territory.  See,  as  illustrations,  the  treaties  between  the  L'nited  States  and 
Great  Britain  of  Oct.  20,  1818,  Art.  Ill,  and  Aug.  6,  1827,  Art.  I,  in  relation 
to  Oregon."     Moore,  Dig.,  I,  296,  note. 

'  Cf.  Creation  of  Rights  of  Property  and  Control,  In  General,  supra,  §  98. 

'  British  Guiana-Venezuela  Boundary  Arbitration,  Counter-Case  of  Great 
Britain,  British  Blue  Book,  Venezuela,  No.  2  (1899)  [Cd.  9337],  p.  114; 
Printed  Argument  presented  on  behalf  of  Venezuela,  British  Blue  Book,  Vene- 
zuela No.  6  (1899)  [Cd.  9501],  pp.  34-54. 

192 


PRESCRIPTION  [§  116 

session  satisfies  certain  requirements  which  practice  has  demanded. 
The  strength  of  the  equities  of  the  latter  Hes  in  the  implied  acqui- 
escence in  the  condition  of  affairs  which  its  own  conduct  in  rela- 
tion to  the  land  concerned  has  produced.^ 

It  is  doubtless  possible  for  a  State  to  dispute  actively  the  validity 
of  its  neighbor's  claims  of  sovereignty  over  territory  long  in  its 
possession  and  over  which  it  was  the  first  to  establish  a  right  of 
property  and  control  by  virtue  of  occupation  never  subsequently 
given  up.  Notwithstanding  the  ease  or  difficulty  with  which  the 
occupant  may  be  able  to  prove  its  case  without  recourse  to  the 
doctrine  of  prescription,  the  right  to  invoke  and  apply  it  may 
prove  to  be  valuable  as  a  means  of  barring  a  colorless  adverse 
claim,  and  in  discouraging  its  preferment.^ 

Recognition  of  the  principle  of  prescription  has  been  due  to  the 
importance  attached  to  the  maintenance  of  a  stable  condition  of 
affairs  among  States.  It  has  been  deemed  more  desirable  to  the 
family  of  nations  that  an  occupant  long  in  possession  should  be 
suffered  to  remain  in  unmolested  control,  than  that  an  adverse 
claimant,  although  unjustly  deprived  of  possession,  should  retain 
its  rights  of  sovereignty,  unless  it  made  constant  and  appropriate 
effort  to  keep  them  alive,  and  that  by  ceaseless  protests  against 
the  acts  of  the  wrongdoer.^    Moreover,  prior  to  The  World  War, 

1  Declared  Field,  J.,  in  Indiana  v.  Kentucky:  "It  is  a  principle  of  public 
law  universally  recognized,  that  long  acquiescence  in  the  possession  of  terri- 
tory and  in  the  exercise  of  dominion  and  sovereignty  over  it,  is  conclusive  of 
the  nation's  title  and  rightful  authority."  136  U.  S.  479,  510.  See,  also, 
Argument  of  the  United  States  before  the  Alaskan  Boundarj'  Tribunal 
(quoting  Field,  J.,  in  Indiana  v.  Kentucky,  136  U.  S.  479,  509-510,  and  Me- 
morial of  British  Agent,  June  11,  1817,  in  Proceedings  of  Commission  under 
Article  IV  of  the  Treaty  of  Ghent,  relating  to  the  title  to  the  islands  in  Pas- 
samaquoddy  Bay),  Proceedings,  Alaskan  Boundary  Tribunal,  V,  201-204; 
Oral  Argument  of  Hon.  Jacob  M.  Dickinson,  in  behalf  of  the  United  States, 
id.,  VII,  831 ;  Opinion  of  American  Membejs  of  Tribunal,  Messrs.  Root, 
Lodge,  and  Turner,  on  Fifth  Question,  id.,  I,  49  and  62-64.  Cf.  opinion  of 
Lord  Alverstone  on  Fifth  Question,  id.,  I,  42. 

2  Don  Luis  de  Onis,  Spanish  Minister,  in  a  commimication  to  Mr.  Adams, 
Secretary  of  State,  Jan.  5,  1818,  concerning  the  disputed  boundarj'  of  Florida, 
said  in  part :  "The  dominion  of  Spain  in  these  vast  regions  being  thus  estab- 
lished, and  her  rights  of  discovery,  conquest,  and  possession,  being  never  dis- 
puted, she  could  scarcely  possess  a  property  founded  on  more  respectable 
principles,  whether  of  the  law  of  nations,  of  public  law,  or  any  others 
■which  serve  as  a  basis  to  such  acquisitions  as  all  the  independent  kingdoms 
and  states  of  the  earth  consist  of.  The  French  themselves  never  disputed  the 
rights  of  the  Spaniards  to  possession  and  property,  nor  laid  claim  to  these 
parts  of  the  territories  of  the  Spanish  monarchy."  Brit,  and  For.  State  Pap., 
1817-1818,  425,  427,  436  ;  Am.  State  Pap.,  For.  Rel.,  IV,  455,  459. 

3  Grotius,  De  Jure  Belli  ac  Pads,  Lib.  II,  Cap.  IV,  Sees.  1  and  9,  Moore, 
Dig.,  I,  293 ;  Vattel,  Law  of  Nations,  Lib.  II,  Cap.  XI,  Sec.  149 ;  Moore, 
Dig.,  I,  294. 

Declares  Hall :  "  Instead  of  being  directed  to  guard  the  interests  of  persons 
believing  themselves  to  be  lawful  owners,  though  unable  to  prove  their  title, 

VOL.  1  —  7  193 


§  116]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

neither  the  flagrancy  of  the  injustice  perpetrated  through  those 
acts,  nor  the  methods  employed,  appeared  to  diminish  respect 
for  the  claims  of  such  a  wrongdoer,  provided  it  crushed  opposi- 
tion and  silenced  protest  for  a  sufficiently  long  time. 

It  must  be  clear  that  it  is  uninterrupted  and  undisturbed  pos- 
session implying  full  acquiescence  on  the  part  of  the  foreign  and 
dispossessed  claimant,  which  in  theorj^  serves  to  rob  it  of  its  rights 
and  to  lodge  them  in  the  actual  occupant.  What  constitutes 
such  possession  must  depend  upon  the  circumstances  of  the  par- 
ticular case.^ 

There  appears  to  be  as  yet  no  general  and  definite  understanding 
among  States  concerning  the  length  of  time  requisite  for  the  es- 
tablishment of  a  title  by  prescription.  Grotius  deemed  a  "pos- 
session beyond  memory"  (possessio  memoria  excedens)  essential.^ 
Possibly  at  the  present  day  a  possession  well  within  the  memory 
of  living  men  might  suffice.  It  has  been  wisely  observed  that, 
in  view  of  the  differing  circumstances  arising  in  the  various  cases 
where  the  doctrine  is  not  unjustly  invoked,  no  precise  period  of 
time  can  be  fixed  by  international  law.^  In  the  rules  agreed  upon 
by  Great  Britain  and  Venezuela  in  1897,  in  the  adjustment  of  the 
boundary  between  British  Guiana  and  Venezuela,  it  was  declared 
that  an  adverse  holding  for  a  period  of  fifty  years  would  establish 
a  good  title.'* 

or  of  persons  purchasing  in  good  faith  from  others  not  in  fact  in  legal  posses- 
sion, the  object  of  prescription  as  between  states  is  mainly  to  assist  in  creating 
a  stability  of  international  order  which  is  of  more  practical  advantage  than  the 
bare  possibility  of  an  ultimate  victory  of  right."     Higgins'  7  ed.,  §  36. 

1  "Everj^thing  depends  upon  the  merits  of  the  individual  case.  As  long 
as  other  Powers  keep  up  protests  and  claims,  the  actual  exercise  of  sover- 
eignty is  not  undisturbed,  nor  is  there  the  required  general  conviction  that  the 
present  condition  of  things  is  in  conformity  with  international  order.  But 
after  such  protests  and  claims,  if  any,  cease  to  be  repeated,  the  actual  pos- 
session ceases  to  be  disturbed,  and  thus  under  certain  circumstances  matters 
may  gradually  ripen  into  that  condition  which  is  in  conformity  with  Inter- 
nationa' order."     Oppenheim,  2  ed.,  I,  §  243. 

2  De  Jure  Belli  ac  Pads,  Lib.  II,  Cap.  IV,  §  9 ;   Moore,  Dig.,  I,  293. 

^  "  It  is  equally  obvious  and  much  more  important  to  note  that,  even  if  it 
were  feasible  to  establish  such  arbitrary  period  of  prescription  by  international 
agreement,  it  would  not  be  wise  or  expedient  to  do  it.  Each  case  shoidd  be 
left  to  depend  upon  its  own.  facts."  Mr.  Olney,  Secy,  of  State,  to  Sir  Julian 
Pauncefote,  June  22,  1896,  For.  Rel.  1896,  232,  236.  "There  is  no  enactment 
or  usage  or  accepted  doctrine  which  lays  down  the  length  of  time  required 
for  international  prescription ;  and  no  full  definition  of  the  degree  of  control 
which  will  confer  territorial  propertv  on  a  nation  has  been  attempted."  Lord 
Salisbury  to  Sir  Julian  Pauncefote,  May  18,  1896,  id.,  228,  230. 

*  Art.  IV,  treaty  between  Great  Britain  and  Venezuela,  Feb.  2,  1897, 
Brit,  and  For.  State  Pap.,  LXXXIX,  57;   Moore,  Dig.,  I,  297. 

In  the  Memorial,  dated  June  11,  1817,  of  the  British  Agent  before  the  Com- 
mission under  Article  IV  of  the  Treaty  of  Ghent,  relating  to  the  title  to  the 
Islands  in  Passamaquoddy  Bay,  it  was  said  (p.  129)  :   "The  further  uncontro- 

194 


PRESCRIPTION  [§116 

Events  leading  up  to  The  World  War  have  sufficed  to  raise  grave 
doubts  whether  respect  for  successions  or  transfers  essentially 
wrongful  to  the  inhabitants  of  the  territories  concerned  can  serve 
as  a  generally  stabilizing  influence  conducive  to  peace ;  and  the 
terms  of  final  adjustment  of  that  conflict  have  shown  the  deter- 
mination of  the  successful  belligerents  to  restore  much  that  was 
deemed  to  have  been  unjustly  taken  by  any  process  from  a  former 
sovereign  and  held  by  the  enemy.  The  interval  from  1871  to 
1914  was  all  too  brief  to  change  the  color  of  German  sovereignty 
over  Alsace-Lorraine ;  and  the  injustice  -wrought  by  the  third  and 
final  partition  of  the  Kingdom  of  Poland  in  1795  was  as  keenly 
felt  and  as  vigorously  dealt  with  as  if  it  had  occurred  a  century 
later.^ 

In  the  future,  opportunities  for  the  acquisition  of  rights  of 
property  and  control  by  virtue  of  prescription  are  likely  to  diminish 
in  number  and  importance,  partly  because  of  the  increasing  op- 
portunities open  to  an  aggrieved  State  to  voice  formally  its  pro- 
tests and  so  escape  the  charge  of  acquiescence,  and  partly  also 
because  of  the  tendency  if  not  the  resolution  of  enlightened  States 
to  attach  little  value  to  the  equities  of  transferees  whose  claims 
are  contemptuous  of  those  of  the  inhabitants  of  the  territory  con- 
cerned despite  long  lapses  of  time.  Thus  the  doctrine  of  pre- 
scription may  be  expected  to  be  limited  in  its  application  and 
use  to  territorial  differences  involving  comparatively  narrow 
areas  such  as  boundary  disputes,  and  where  the  possessor  invok- 
ing the  principle  relies  upon  a  title  which,  although  legally  de- 
verted  fact,  that  under  this  mutual  understanding  of  the  treaty,  the  United 
States  as  well  as  the  State  of  Massachusetts  in  the  words  of  the  late  Agent  of 
the  United  States  before  quoted  'remained  silent  spectators'  of  the  settlements 
and  improvements  made  by  His  Majesty's  Subjects  upon  these  Islands  with 
the  above  exception,  during  a  period  of  more  than  twenty-three  years  with  re- 
gard to  one  of  them,  and  of  more  than  thirty  years  with  regard  to  all  the  others, 
will  justly  furnish  an  argument,  that  the  United  States  have  no  claim  at  this 
day  to  any  of  those  Islands."     Proceedings,  Alaskan  Boundary  Tribunal,  V,  203. 

1  Thus'  in  the  formal  reply  of  the  Allied  and  Associated  Powers  of  June  16, 
1919,  to  the  German  counter-proposals  relative  to  the  treaty  of  peace,  it  was 
said  in  rehition  to  the  eastern  frontiers  of  Germany,  that  two  cardinal  prin- 
ciples had  been  followed  :  first,  the  special  obligation  to  reestabUsh  the  Polish 
Nation  in  the  independence  of  which  it  had  been  deprived  more  than  a  cen- 
tury before,  and  which,  it  was  declared,  was  one  of  the  greatest  wrongs  of 
which  history  had  a  record,  and  of  which  the  memory  and  result  had  for  a 
long  time  poisoned  the  political  life  of  a  large  part  of  Europe,  and  was  one  of 
the  essential  steps  by  which  the  military  power  of  Prussia  had  been  built  up, 
and  the  whole  political  life,  first  of  Prussia  and  then  of  Germany,  perverted. 
The  second  principle  was  that  there  should  be  included  in  the  restored  Po- 
land those  districts  inhabited  by  an  indisputably  Polish  population.  Misc. 
No.  4  (1919)  Cmd.  258,  p.  12.  See  summary  of  text  in  Current  Hist.  Mag., 
X,  Part  2,  32-33.  See  also  Art.  92  of  the  treaty  of  peace  with  Germany  of 
June  28,  1919. 

195 


§  116]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

ficient  in  origin,  is  based  upon  something  more  respectable  than 
conquest. 

(4) 
§  117.   Revolution. 

Where  by  virtue  of  a  successful  revolution  a  new  State  comes 
into  being,  it  necessarily  succeeds  to  the  rights  of  sovereignty 
over  the  territory  which  it  occupies  and  which  previously  belonged 
to  the  parent  State. ^  No  act  on  the  part  of  the  latter  is  required 
in  order  to  validate  the  succession.  The  new  State  is  regarded 
as  having  perfected  by  its  own  achievement  the  transfer  of  rights 
of  property  and  control.  Thus  ultimate  recognition  of  its  inde- 
pendence by  the  parent  State,  even  if  expressed  in  a  treaty  of 
peace  and  friendship,  may  not  be  deemed  to  constitute  a  cession 
or  grant  of  the  territory  concerned.  Through  the  operation  of 
the  American  Revolution,  the  United  States  acquired  for  itself 
the  rights  of  sovereignty  previously  exercised  by  Great  Britain 
over  the  territories  of  its  revolting  colonies.^ 

c 
Extinction 

(1) 
§  118.    Operation  of  Nature. 

The  loss  by  a  State  of  its  rights  of  property  and  control  rarely 
involves  their  extinction.  Commonly  a  State  or  a  country  deemed 
to  possess  the  requisite  capacity  succeeds  to  what  is  given  up. 
Under  certain  circumstances,  however,  these  rights  may  become 
extinct.  Such  is  the  case  when,  for  example,  territory  over  which 
sovereignty  has  been  exercised  is,  through  the  operation  of  nature, 
blotted  out  of  existence  or  rendered  forever  uninhabitable  by  man.^ 

1  "The  United  States  regard  it  as  an  established  principle  of  public  law 
and  of  international  right  that  when  a  European  colony  in  America  becomes 
independent  it  succeeds  to  the  territorial  limits  of  the  colony  as  it  stood  in 
the  hands  of  the  parent  country."  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Dallas, 
July  26,  1856,  MS.  Inst.  Great  Britain,  XVII,  1,  11,  Moore,  Dig.,  I,  303. 

^  Declared  Johnson,  J.,  in  Harcourt  v.  Gaillard  :  "  It  has  never  been  admitted 
by  the  United  States,  that  they  acquired  anything  by  way  of  cession  from 
Great  Britain  by  that  treaty  [of  1783].  It  has  been  viewed  only  as  a  recogni- 
tion of  pre-existing  rights,  and  on  that  principle,  the  soil  and  sovereignty  within 
their  acknowledged  limits,  were  as  much  theirs,  at  the  declaration  of  inde- 
pendence as  at  this  hour."  12  Wheat.  523,  527.  Also,  Henderson  v.  Poin- 
dexter's  Lessee,  12  Wheat.  530;  United  States  v.  Repentigny,  5  Wall.  211; 
Mcllvaine  v.  Coxe's  Lessee,  4  Cranch,  209,  212. 

^  Oppenheim,  2  ed.,  I,  §  245. 

196 


ABANDONMENT  [§  119 

(2) 
§119.   Abandonment. 

Rights  of  property  and  control  become  extinct  when,  by  a  pro- 
cess known  as  abandonment,  a  State,  as  an  incident  of  losing  pos- 
session, gives  them  up,  and  no  immediate  successor  is  at  hand  to 
keep  them  alive.  In  such  case  the  territory  becomes  res  nullius, 
and  is  thereupon  open  to  occupation  by  any  other  State. ^  In  this 
respect  abandonment  differs,  as  has  been  observed,  from  relin- 
quishment."   Circumstances  indicating  abandonment  rarely  occur .^ 

In  1895,  the  occupation  by  Great  Britain  of  the  Island  of  Trini- 
dad was  made  the  subject  of  protest  by  the  Government  of  Brazil, 
on  the  ground  that  the  latter's  right  of  ownership  of  the  island 

1  Hall,  Higgins'  7  ed.,  §34;  Robert  Lansing,  "A  Unique  International 
Problem",  Am.  J.,  XI,  763,  in  which  there  is  discussed  the  legal  situation 
applicable  to  the  archipelago  of  Spitzbergen. 

2  At  the  Conference  of  Oct.  11,  1898,  at  Paris,  of  the  Commissioners  of  the 
United  States  and  Spain,  appointed  to  conclude  a  treaty  of  peace,  the  Span- 
ish Commissioners  filed  a  memorandum  maintaining  that  it  was  "imperative 
that  the  President  of  the  United  States  should  accept  the  relinquishment 
made  by  Her  Catholic  Majesty  of  her  sovereignty  over  the  Island  of  Cuba." 
Sen.  Doc.  No.  62,  55  Cong.,  part  I,  40.  This  contention  was  based  on  the 
fact  that  the  United  States  by  the  preliminary  Protocol  of  Aug.  12,  1898,  em- 
bodying the  basis  of  the  terms  for  the  establishment  of  peace,  had  required 
Spain  to  agree  to  "relinquish"  her  title  to  Cuba,  and  had  not  demanded 
that  she  "abandon"  it.  Id.,  40.  In  their  reply  of  Oct.  14,  1898,  the  Ameri- 
can Commissioners  said  in  part:  "A  distinction  is  thus  made  between  a 
relinquishment  and  an  abandonment;  and  it  is  argued  that  while  'abandoned 
territories'  become  derelict,  so  that  they  may  be  acquired  by  the  first  occu- 
pant, 'relinquished  territories'  necessarily  pass  to  him  to  whom  relinquishment 
is  made.  The  American  Commissioners  are  unable  to  admit  that  such  a 
distinction  between  the  words  in  question  exists  either  in  law  or  in  common 
use.  .  .  .  The  distinction  thus  drawn  [by  the  Spanish  writer,  Escriche],  not  be- 
tween relinquishment  and  abandonment,  which  are  treated  both  in  English  and 
in  Spanish  as  practically  the  same,  but  between  relinquishment  and  cession, 
is  written  upon  the  face  of  the  Protocol."  Id.,  46,  47.  It  was  the  sole  object 
of  the  American  Commissioners  to  emphasize  the  fact  that  relinquishment 
and  abandonment  were  alike,  in  that  neither  process  required  the  acceptance 
of  title  by  a  grantee,  and  that  in  this  respect  both  differed  from  cession.  The 
Spanish  Commissioners  thereupon  proceeded  to  argue  that  the  relinquishment 
demanded  by  their  adversaries  involved  all  of  the  legal  consequences  of 
abandonment.  Id.,  78-84.  In  later  memoranda,  however,  the  American 
Commissioners  were  careful  to  point  out  the  fact  that  Cuba,  upon  the  re- 
linquishment of  the  Spanish  title,  would  not  become  derelict  and  res  nullius, 
and  thus  would  not  wholly  resemble  abandoned  territory.  Id.,  98-99.  By 
implication,  therefore,  they  recognized  a  distinction  between  abandonment 
and  relinquishment,  which  was  not  shown  in  their  earliest  statement,  quoted 
above.     This  distinction  seems  important. 

3  Concerning  the  dispute  between  France  and  Great  Britain  as  to  the  Is- 
land of  Santa  Lucia,  see  Phillimore,  2  ed.,  I,  308,  quoted  in  Moore,  Dig.,  I, 
298;  Hall,  Higgins'  7  ed.,  §  34.  As  to  the  controversy  between  Great 
Britain  and  Portugal,  relating  to  territorv  at  Delagoa  Bay,  see  Hall,  Hig- 
gins' 7  ed.,  §  34;  also  Award  of  Marshal  MacMahon,  July  24,  1875,  Moore, 
Arbitrations,  V,  4984-4985. 

Respecting  the  claims  against  the  United  States  by  reason  of  its  breaking 
up  a  piratical  colony  on  the  Falkland  Islands  in  1831,  cf.  Moore,  Dig.,  I,  298- 
299,  and  documents  there  cited. 

197 


§  119]     GENERAL    RIGHTS   OF    PROPERTY    AND    CONTROL 

had  never  been  given  up.     Abandonment,  it  was  declared  by  the 
Brazilian  Minister  of  Foreign  Affairs : 

Depends  on  the  intention  of  relinquishing,  or  on  the  cessation 
of  physical  power  over  the  thing,  and  must  not  be  confounded 
with  simple  neglect  or  desertion.  A  proprietor  may  leave  a 
thing  deserted  or  neglected  and  still  retain  his  ownership.  The 
fact  of  legal  possession  does  not  consist  in  actually  holding  a 
thing,  but  in  having  it  at  one's  free  disposal.  The  absence  of 
the  proprietor,  neglect,  or  desertion  does  not  exclude  free  dis- 
posal, and  hence  animo  retinetur  possessio.  .  .  .  Possession  is 
lost  corpore  only  when  the  ability  to  dispose  of  a  thing  is  ren- 
dered completely  impossible,  after  the  disappearance  of  the 
status  which  permits  the  owner  to  dispose  of  the  thing  possessed.^ 

Evidence  of  either  a  definite  intention  of  giving  up  the  right 
of  property  and  control  with  respect  to  territory  at  the  disposal  of 
the  sovereign,  or  of  a  complete  cessation  of  the  effort  to  regain  a 
control  wrested  from  it  by  an  uncivilized  people  not  deemed 
capable  of  exercising  such  a  right,  would,  on  principle,  seem  to  be 
necessary  in  order  to  prove  abandonment.  When  the  authorities 
of  a  State  are  expelled  from  territory  belonging  to  it  by  the  su- 
perior force  of  a  native  and  uncivilized  population,  the  loss  of 
control  doubtless  minimizes  the  legal  significance  of  intention. 
The  hope  and  expectation  entertained  by  the  State  of  effecting 
a  lodgment  and  regaining  the  mastery  may  not  long  suffice  to 
keep  alive  any  right  of  sovereignty.  Even  in  such  a  case,  however, 
a  certain  interval  of  time  might  fairly  be  allowed  for  the  reestab- 
lishment  of  actual  dominion  before  regarding  the  right  as  extinct. 

When  a  State  appears  voluntarily  to  have  deserted  territory 
the  control  of  w^iich  constantly  remains  within  its  grasp,  abandon- 
ment should  not  be  deemed  to  have  taken  place  without  ample 
proof  of  a  design  to  give  up  all  rights  of  property  and  control.^ 

1  Mr.  Carvalho,  Brazilian  Minister  of  Foreign  Affairs,  to  Mr.  Phipps, 
July  21,  1895,  For.  Rel.  1895,  I,  65,  66-67,  Moore,  Dig.,  I,  299-300.  The  acts 
on  the  part  of  Brazil  indicating  the  continuance  of  its  assertion  of  dominion 
over  the  Island,  justified  the  concession  of  its  rights  therein  by  Great  Britain. 

2  "But  when  occupation  has  not  only  been  duly  effected,  but  has  been 
maintained  for  some  time,  abandonment  is  not  immediately  supposed  to  be 
definitive.  If  it  has  been  voluntary-,  the  title  of  the  occupant  may  be  kept 
alive  by  acts,  such  as  the  assertion  of  claim  b}^  inscriptions,  which  would 
be  insufficient  to  confirm  the  mere  act  of  taking  possession ;  and  even  where 
the  abandonment  is  complete,  an  intention  to  return  must  be  presumed  dur- 
ing a  reasonable  time.  If  it  has  been  involuntary,  the  question  whether 
the  absence  of  the  possessore  shall  or  shall  not  extinguish  their  title  depends 
upon  whether  the  circumstances  attendant  upon  and  following  the  withdrawal 
suggest  the  intention,  or  give  grounds  for  reasonable  hope,  of  return."  HaU, 
Higgins'  7  ed.,  §  34. 

198 


IN  GENERAL  [§  120 

Such  a  design  might  be  estabhshed  by  evidence  of  long-continued 
and  complete  neglect  of  the  territory,  or  of  a  formal  and  appropri- 
ate declaration  of  policy. 


CERTAIN  EFFECTS  OF  CHANGE  OF  SOVEREIGNTY 

a 
§  120.   In  General. 

The  phrase  "change  of  sovereignty"  is  here  employed  to  de- 
scribe the  situation  where  one  State  succeeds  to  the  right  of  exclu- 
sive control  within  and  supremacy  over  territory  possessed  by 
another.  Succession  implies  that  rights  of  sovereignty  are  already 
in  existence  prior  to  the  change,  and  their  lodgment  in  a  State,  or 
a  political  community  regarded  as  capable  of  exercising  them, 
and  whose  title  thereto  is  respected.  When  a  State  asserts  do- 
minion over  territory  occupied  by  an  uncivilized  people  deemed 
to  lack  such  capacity,  no  change  of  sovereignty  is  apparent.  The 
occurrence  is  rather  illustrative  of  the  coming  into  being  of  rights 
of  property  and  control  through  the  act  of  an  occupant.^ 

It  is  believed  to  be  important  to  distinguish  between  the  legal 
effect  produced  by  a  change  of  sovereignty  and  that  resulting  from 
the  acquisition  of  what  is  gained  by  the  transfer.  Thus,  for  ex- 
ample, the  question  whether  or  not  the  cession  of  territory  serves 
to  terminate  the  operation  of  any  laws  within  the  ceded  domain 
is  wholly  unrelated  to  that  concerning  the  extent  of  the  power  of 
the  grantee  to  legislate  at  will  for  the  territory  acquired.  The  one 
has  reference  to  the  direct  consequence  of  the  change  of  sovereignty 
itself,  the  other  to  the  use  of  something  attributable  to  what  that 
change  has  already  accomplished. 

'  Said  Lord  Kingsdown  in  the  case  of  the  Advocate  General  of  Bengal  v. 
Ranee  Surnomoye  Dossee :  "  Where  Englishmen  establish  themselves  in  an 
uninhabited  or  barbarous  country,  they  carry  with  them  not  only  the  laws, 
but  the  sovereignty  of  their  own  State  ;  and  those  who  live  amongst  them  and 
become  members  of  their  community  become  also  partakers  of  and  subject 
to  the  same  laws."  2  Moore's  Privy  Council,  n.  s.  22,  Beale's  Cases  on  Con- 
flict of  Laws,  ed.  of  1900,  I,  67,  68. 

"The  acquisition  of  the  Philippines  was  not  like  the  settlement  of  the  white 
race  in  the  United  States.  Whatever  consideration  may  have  been  shown 
to  the  North  American  Indians,  the  dominant  jjurpose  of  the  whites  in  America 
was  to  occupy  the  land.  It  is  obvious  that,  however  stated,  the  reason  for  our 
taking  over  the  Philippines  was  different.  No  one,  we  suppose,  would  deny 
that  so  far  as  consistent  with  paramount  necessities  our  first  object  in  the 
internal  administration  of  the  islands  is  to  do  justice  to  the  natives,  not  to 
exploit  their  country  for  private  gain.  By  the  organic  Act  of  July  1,  1902, 
Ch.  1369,  Sec.  12,  32  Stat.  691,  all  the  property  and  rights  acquired  there 
by  the  United  States  are  to  be  administered  '  for  the  benefit  of  the  inhabit- 

199 


§  120]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

It  is  necessary  to  observe  with  care  the  extent  to  which  a  change 
of  sovereignty  serves  directly  to  burden  the  transferee  of  territory 
with  the  obhgations  of  its  predecessor.  This  is  a  problem  of  in- 
ternational law  in  the  solution  of  which  States  have  been  con- 
fronted with  a  variety  of  considerations  the  influence  of  which 
has  varied  according  to  the  circumstances  of  the  particular  case. 
The  examination  of  existing  practices  may,  therefore,  tend  to 
fortify  belief  that,  save  under  a  few  narrowly  defined  circumstances, 
discord  rather  than  harmony  of  view  is  still  prevailing,  and  that 
there  is  lack  of  evidence  of  general  agreement  indicative  of  the 
nature  and  scope  of  duties  to  be  regarded  as  possessing  the  charac- 
ter of  law.  The  scientific  value  of  any  conclusions  with  respect 
to  what  interested  States  have  deemed  to  be  burdens  legally  im- 
posed upon  a  new  sovereign,  or  concerning  the  basis  upon  which 
rules  of  conduct  should  be  formulated  for  future  guidance,  is  be- 
lieved to  depend  in  no  small  degree  upon  the  directness  and  per- 
sistence with  which  the  attempt  is  made  to  perceive  the  immediate 
effect  of  a  change  of  sovereignty,  as  distinct  from  that  produced 
by  other  events. 

b 

§  121.    Effect  on  Legislative  and  Political  Power. 

A  change  of  sovereignty  serves  directly  to  transfer  to  the  new 
sovereign  all  legislative  and  political  power  with  respect  to  the 
territory  concerned.^  Its  predecessor  is  rendered  incapable  of 
performing  any  valid  act  in  defiance  of  the  supremacy  of  the  trans- 
feree. Thus  the  former  cannot  lawfully  alienate  public  lands  or 
grant  public  franchises.^    No  valid  disposition  thereof  can  be  made 

ants  thereof.'  It  is  reasonable  to  suppose  that  the  attitude  thus  assumed  by 
the  United  States  with  regard  to  what  was  unquestionably  its  own  is  also  its 
attitude  in  deciding  what  it  will  claim  for  its  own."  Holmes,  J.,  in  Cariiio  v. 
The  Insular  Government  of  the  Philippine  Islands,  212  U.  S.  449,  458-459. 

1  "The  mere  acquisition  by  one  country  (A,  for  example)  of  the  sovereignty 
over  another  country  (B,  for  example)  produces  no  other  legal  effect  upon 
the  latter  than  to  give  it  a  new  sovereign,  and  consequently  to  substitute 
the  legislature  and  the  chief  executive  of  A  for  those  of  B ;  but  A  and  B 
will  still  be  in  strictness  foreign  to  each  other,  each  having  its  own  govern- 
ment, laws,  and  institutions;  and  though  the  legislature  and  chief  executive 
of  each  will  be  the  same,  yet  they  will  act  in  an  entirely  different  capacity 
when  acting  for  B  from  that  in  which  they  act  when  acting  for  A."  "The 
Status  of  Our  New  Territories",  by  Christopher  C.  Langdell,  Harv.  Law  Rev., 
XII,  365,  387. 

2  Harcourt  v.  Gaillard,  12  Wheat.  523 ;  More  v.  Steinbach,  127  U.  S.  70, 
81 ;  Ely's  Administrator  v.  United  States,  171  U.  S.  220,  231 ;  Alexander  v. 
Roulet,  13  Wall.  386;  opinion  of  Mr.  Griggs,  Attorney-General,  22  Ops. 
Attys.-Gen.,  574,  577,  where  there  is  strangely  attributed  to  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Harcourt  v.  Gaillard,  language 
not  there  employed  by  that  tribunal. 

200 


EFFECT  ON  LAW  [§  122 

except  in  pursuance  of  the  authority  of  the  new  sovereign.^  In 
applying  this  principle  it  may  become  expedient  to  provide  in  a 
treaty  of  cession  that  certain  valid  acts  of  the  grantor  prior  to  the 
transfer  be  not  robbed  of  the  effect  which  they  were  designed  to 
produce,  in  consequence  of  circumstances  attending  or  following 
the  change  of  sovereignty.^ 

After  the  conclusion  of  a  treaty  of  cession,  and  pending  the 
actual  transfer  of  possession  to  the  grantee,  the  grantor  is  doubt- 
less permitted  to  exercise  authority  necessary  to  maintain  order 
and  safeguard  economic  conditions  within  the  territory  concerned. 
During  that  interval  (at  least  in  the  case  of  a  treaty  which  is  to 
take  effect  from  the  date  of  signature,  and  is  ultimately  confirmed 
by  both  parties)  it  may  be  regarded  as  burdened  with  the  duty  of 
impairing  in  no  manner  the  value  to  its  successor  of  its  new  domain. 
The  Supreme  Court  of  the  United  States  has  declared  that  while 
in  such  case  "full  sovereignty"  does  not  pass  to  the  State  to  which 
it  is  transferred  until  actual  delivery,  "  it  is  also  true,  that  the  ex- 
ercise of  sovereignty  by  the  ceding  country  ceases,  except  for 
strictly  municipal  purposes,  especially  for  granting  lands."  ^ 

§  122.    Effect  on  Law.  ^ 

"  Law  once  established  continues  until  changed  by  some  compe- 
tent legislative  power.  It  is  not  changed  merely  by  change  of 
sovereignty."  '^  This  principle  has  been  recognized  by  American 
tribunals  in  its  application  to  laws  protecting  the  private  rights 

1  More  V.  Steinbach,  127  U.  S.  70,  81. 

2  See,  for  example,  Art.  VIII  of  treaty  between  the  United  States  and  Spain, 
of  Feb.  22,  1819,  providing  for  the  cession  of  the  Floridas,  Malloy's  Treaties, 
II,  1654. 

'  Davis  V.  Police  Jury  of  Concordia,  9  How.  280,  280 ;  United  States  v. 
Revnes,  9  How.  127;  United  States  v.  D'Auterive,  10  How.  609;  Montault 
V.  United  States,  12  How.  47. 

Concerning  the  authorization  by  the  War  Department,  February  11,  1899, 
of  persons  holding  the  office  of  notary  public  in  territories  subject  to  military 
government  by  the  military  forces  of  the  United  States,  to  continue  to  hold 
such  offices  and  perform  the  functions  thereof,  cf.  Mr.  Adee,  Second  Assist. 
Secy,  of  State,  to  Mr.  Rooker,  February  24,  1899,  235  MS.  Dom.  Let.  131, 
cited  in  Moore,  Dig.,  I,  306,  note. 

Concerning  the  authorization  of  foreign  consuls  to  continue  to  exercise 
their  functions  in  the  Hawaiian  Islands,  upon  their  acquisition  by  the  United 
States,  see  Mr.  Hay,  Secy,  of  State,  to  Mr.  Grip,  Swedish  Minister,  November 
17,  1898,  MS.  Notes  to  Swedi.sh  Legation,  VIII,  109,  Moore,  Dig.,  I,  308. 
As  to  the  provisional  recognition  of  consuls  in  the  Philippines  and  Porto  Rico, 
upon  their  cession  to  the  United  States,  cf.  Moore,  Dig.,  I,  309,  note. 

*  Joseph  H.  Beale,  Cases  on  Conflict  of  Laws,  III.  Summary,  Sec.  9,  cit- 
ing Commonwealth  v.  Chapman,  13  Mete.  68. 

"There  can  be  no  break  or  interregnmn  in  law.  From  the  time  law  comes 
into  existence  with  the  first-felt  corporateness  of  a  primitive  people  it  must 
last  until  the  final  disappearance  of  human  society.     Once  created,  it  per- 

201 


§  122]     GENERAL   RIGHTS   OP    PROPERTY   AND    CONTROL 

of  the  inhabitants  of  the  territory  concerned.^  It  is  not  beheved 
that  even  the  pubhc  laws  of  the  former  sovereign  form  an  excep- 
tion and  are  directly  affected  by  the  transfer.  It  is  doubtless  true 
that  such  laws  as  are  at  variance  with  the  constitution  and  laws 
of  the  new  sovereign  cease  to  operate,^  but  the  reason  for  such 
cessation  is  not  to  be  ascribed  to  the  bare  change  of  sovereignty. 

sists  until  a  change  takes  place,  and  when  changed  it  continues  in  such  changed 
condition  until  the  next  change,  and  so  on  forever.  Conquest  or  coloniza- 
tion is  impotent  to  bring  law  to  an  end ;  in  spite  of  change  of  constitution, 
the  law  continues  unchanged  until  the  new  sovereign  by  a  legislative  act 
creates  a  change."  J.  H.  Beale,  Treatise  on  the  Conflict  of  Laws,  Cambridge, 
1916,  Sec.  131. 

It  must  be  clear  that  the  construction  placed  upon  the  statutory  law  of  the 
former  sovereign  by  its  tribunals  prior  to  a  change  of  sovereignty  should  be 
respected  bv  those  of  its  successor  after  the  change.  In  this  connection  see 
Kealoha  v.  Castle,  210  U.  S.  149. 

1  Marshall,  C.  J.,  in  American  Insurance  Co.  v.  Canter,  1  Pet.  511,  542; 
Strother  v.  Lucas,  12  Pet.  410,  438;  United  States  v.  Power's  Heirs,  11  How. 
570,  577;  Chicago  &  Pacific  Ry.  Co.  v.  McGHnn,  114  U.  S.  452;  Ortega  v. 
Lara,  202  U.  S.  339,  342 ;  Vilas  v.  Manila,  220  U.  S.  345,  357;  Opinion  of  Mr. 
Griggs,  Attorney-General,  22  Ops.  Attvs.-Gen.,  526 ;  In  re  Chavez,  149  Fed.  73 ; 
Note  in  Harv.  Law  Rev.,  XIX,  131.  Cf.,  also,  Calvin's  Case,  4  Coke,  Part  VII, 
3,  39 ;  Blankard  v.  Galdy,  2  Salkeld,  411 ;  Campbell  v.  Hall,  1  Cowp.  204. 

"We  take  it  to  be  a  well-settled  principle,  acknowledged  by  all  civilized 
States  governed  by  law,  that  by  means  of  a  political  revolution,  by  which  the 
political  organization  is  changed,  the  municipal  laws  regulating  their  social 
relations,  duties,  and  rights  are  not  necessarily  abrogated.  They  remain  in 
force,  except  so  far  as  they  are  repealed  or  modified  by  the  new  sovereign  au- 
thority."    Shaw,  C.  J.,  in  Commonwealth  v.  Chapman,  13  Mete.  68,  71. 

A  law  the  operation  of  which  is,  in  point  of  time,  expressly  or  by  implica- 
tion limited  to  the  life  of  a  particular  treaty,  obviously  ceases  to  exist  upon 
the  termination  of  the  compact.  That  such  termination  may  be  brought 
about  by  a  change  of  sovereignty  over  territory  of  one  of  the  contracting 
parties,  rather  than  by  any  other  occurrence,  is  without  significance.  Doubt- 
less it  is  possible  for  a  law  providing  for  the  enjoyment  of  special  privileges 
by  a  class  of  nationals  of  a  foreign  contracting  party  (such  as  its  consular  offi- 
cers) to  survive  a  treaty  itself  terminated  through  the  operation  of  a  change 
of  sovereignty.  Cf.  For.  Rel.  1896,  Ixvii,  117-135;  id.,  1897,  152-154,  re- 
specting the  steps  taken  by  France,  upon  its  annexation  of  Madagascar,  to 
establish  its  judicial  system  in  that  Island  and  thereby  to  stop  the  exercise 
of  judicial  functions  by  American  consular  officers. 

-  "The  doctrine  invoked  by  the  defendants,  that  the  laws  of  a  conquered 
or  ceded  country,  except  so  far  as  they  may  affect  the  political  institutions 
of  the  new  sovereign,  remain  in  force  after  the  conquest  or  cession  until 
changed  by  him,  does  not  aid  their  defense.  That  doctrine  has  no  applica- 
tion to  laws  authorizing  the  alienation  of  any  portion  of  the  public  doniain, 
or  to  officers  charged  under  the  former  government  with  that  power."  Field, 
J.,  in  More  v.  Steinbach,  127  U.  S.  70,  81. 

"Of  course,  in  case  of  cession  to  the  United  States,  laws  of  the  ceded  coun- 
try inconsistent  with  the  Constitution  and  laws  of  the  United  States  so  far  as 
applicable  would  cease  to  be  of  obligatory  force ;  but  otherwise  the  municipal 
laws  of  the  acquired  country  continue."  Fuller,  C.  J.,  in  Ortega  v.  Lara, 
202  U.  S.  339,  442. 

"That  there  is  a  total  abrogation  of  the  former  political  relations  of  the 
inhabitants  of  the  ceded  region  is  obvious.  That  all  laws  theretofore  in  force 
which  are  in  conflict  with  the  political  character,  constitution,  or  institutions 
of  the  substituted  sovereign  lose  their  force,  is  also  plain."  Lurton,  J.,  in 
Vilas  V.  Manila,  220  U.  S.  345,  357.  See  also.  Holmes,  J.,  in  Panam?  R.  R. 
V.  Bosse,  249  U.  S.  41,  44. 

202 


EFFECT  ON  LAW  [§  122 

It  is  attributable  rather  to  conditions  which  are  in  themselves 
consequences  of  that  change.  The  very  disappearance  of  the 
former  sovereign  with  its  distinctive  and  possibly  arbitrary  form 
of  government  leaves  no  room  for  the  operation  of  laws  designed 
to  uphold  it  and  contemplating  its  existence.  Again,  the  funda- 
mental law  of  the  new  sovereign  may  prevent  it  from  accepting 
a  grant  of  territory  without  either  subjecting  it  to  the  application 
of  certain  organic  institutions,  or  rendering  inoperative  existing 
statutes  hostile  to  the  spirit  thereof.^ 

In  such  cases  the  change  is  due  to  circumstances  which,  operat- 
ing simultaneously  with  the  cession,  produce  an  effect  not  unlike 
that  of  an  amendatory  legislative  enactment ;  and  it  is  to  be  as- 
signed to  the  operation  of  the  will  of  the  new  sovereign  rather  than 
to  any  other  cause.^ 

The  revenue  laws  of  ceded  territory  do  not  appear  to  be  afFected 
by  a  change  of  sovereignty.^     When,  however,  such  territory  is  by 

^  A  majority  of  the  Supreme  Court  (consisting  of  Justices  Gray,  Brown, 
Shiras,  White,  and  McKenna),  in  the  case  of  Downes  v.  Bidwell,  182  U.  S. 
244,  concurred  in  the  proposition  that  —  "The  mere  acquisition  or  cession  of 
a  region  does  not  'incorporate'  it  into  the  United  States  so  as  to  subject  it 
generally  to  those  clauses  of  the  Constitution  which  restrain  and  prohibit 
certain  action  by  the  Congress  of  the  United  States;  but  such  regions  may 
be  temporarily  governed,  in  some  respects,  at  least,  as  seems  most  suitable 
for  their  own  interests  and  those  of  the  United  States."  James  B.  Thayer, 
"The  Insular  Tariff  Cases  in  the  Supreme  Court ",  Harv.  Law  Rev.,  XV,  i64, 
165. 

See,  also,  the  language  of  Mr.  Justice  White  in  Downes  v.  Bidwell,  182 
U.  S.  244,  306,  310-311,  314-315,  336;  also  that  of  Mr.  Justice  Brown,  id., 
279,  285,  287;  corn-pare  that  of  Chief  Justice  Fuller,  id.,  373;  and  that  of 
Mr.  Justice  Harlan,  id.,  384. 

Whether  or  not  the  constitution  or  public  policy  of  a  State  which  acquires 
territory  by  cession  forbids  the  enforcement  of  a  particular  law  of  the  former 
sovereign,  is  obviously  not  a  question  of  international  law,  for  the  solution  is 
dependent  upon  considerations  wholly  unrelated  to  the  consequence  of  a 
change  of  sovereigntv.  New  Orleans  v.  United  States,  10  Pet.  662 ;  Ortega 
V.  Lara,  202  U.  S.  339,  342. 

2  The  supplanting  of  the  Dutch  control  of  Manhattan  Lsland  by  that  of  the 
English  in  the  seventeenth  century  was  accompanied  by  a  complete  resettle- 
ment and  change  of  laws  by  the  latter  in  pursuance  of  the  charter  granted  to 
the  Duke  of  York  by  his  brother,  Charles  IL  Thils  it  became  immaterial 
whether  the  Dutch  possession  was  regarded  as  that  of  a  military  occupant 
temporarily  suspending  the  common  law  of  the  de  jure  sovereign,  or  as  that 
of  an  established  government  exercising  fullest  rights  of  sovereignty.  Morti- 
mer V.  New  York  Elevated  R.  R.  Co.,  6  N.  Y.  Supp.  898. 

"If  territory  containing  a  small  body  of  people,  not  constituting  a  separate 
social  community,  is  annexed  to  another  country,  the  Inw^  of  the  latter  coun- 
try at  once  takes  effect,  since  the  new  territory  and  inhabitants  are  by  the 
annexation  itself  incorporated  with  the  old,  Chappell  v.  Jardine,  51  Conn. 
64;  but  if  the  annexed  territory  contained  a  separate  political  society,  their 
old  laws  would  continue,  as  in  the  case  of  the  annexation  of  Florida."  Beale's 
Cases  on  Conflict  of  Laws,  Summary,  Sec.  10. 

'Taney,  C.  J.,  in  Fleming  v.  Page,  9  How.  603;  Mr.  Griggs,  Attorney- 
General,  22  Ops.  Attys.-Gon.,  150.     Compare  Cross  r.  Harri.son,  16  How.  164. 

After  France  had  acquired  control  over  Madagascar  in  1896,  the  new  sov- 

203 


§  122]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

some  domestic  process  incorporated  into  or  united  with  the  country 
of  the  grantee,  those  laws  may  be  in  fact  changed.  This  is  ob- 
viously due  to  the  fact  of  incorporation  however  accomplished, 
rather  than  to  the  transfer  of  sovereignty^ 

In  the  case  of  Dooley  v.  United  States,  a  majority  of  the  Supreme 
Court  of  the  United  States  concluded  that  the  authority  of  the 
President  as  Commander  in  Chief  of  the  Army,  to  exact  duties  in 
1899,  on  imports  from  the  United  States  to  Porto  Rico,  ceased 
with  the  ratification  of  the  treaty  of  peace  with  Spain,  and  that 
the  right  of  free  entry  of  goods  into  that  island  from  the  ports  of 
the  United  States  continued  until  Congress  should  properly  legis- 
late upon  the  subject.^  The  opinion  of  the  Court  made  no  refer- 
ence to  the  legal  effect  of  cession  on  the  laws  of  ceded  territory, 
although  it  was  declared  that  the  validity  of  the  order  of  the  Presi- 
dent imposing  duties  upon  goods  imported  into  Porto  Rico  from 
foreign  countries  was  not  questioned.^ 


Effect  on  Public  Debts 

(1) 
§  123.   In  General. 

Statesmen  have  found  it  an  illusive  task  to  determine  what 
should  be  regarded  as  the  effect  produced  upon  the  public  debts 
of  a  State  by  a  change  of  sovereignty  over  a  part  or  all  of  its  terri- 

ereign  enacted  a  law  declaring  Madagascar  and  its  depending  islands  a  French 
colony,  and  announcing  that  after  the  promulgation  of  that  law  French 
products  imported  into  the  island  from  France  or  one  of  her  colonies  would 
pay  no  duty,  and  that  until  the  adoption  of  the  definitive  customs  regula- 
tions, foreign  goods  would  pay  a  duty  of  10  per  cent,  ad  valorem.  It  will 
thus  be  seen  that  it  was  by  means  of  the  act  of  the  new  sovereign  and  not  as  a 
consequence  of  a  change  of  sovereigntv,  that  the  revenue  laws  of  Madagascar 
were  altered.     U.  S.  For.  Rel.  1896,  134-135. 

^  182  U.  S.  222.  See,  also,  dissenting  opinion  of  Mr.  Justice  WTiite,  id., 
236. 

2  The  decision  was  due  to  the  opinion  that  the  President  could  not,  for 
constitutional  reasons,  continue  the  exaction  of  duties  imposed  by  him  during 
the  military  occupation  of  Porto  Rico  after  that  island  had  been  ceded  to  the 
United  States  pursuant  to  the  ratification  of  the  treaty.  See  well-considered 
note  in  Harv.  Law  Rev.,  XV,  220. 

The  important  opinions  of  the  several  Justices  of  the  Supreme  Court  of  the 
United  States  in  the  group  of  cases  known  as  the  Insular  Cases,  concern  gen- 
erally the  relation  of  the  Constitution  of  the  United  States  to  the  territory 
ceded  by  Spain  in  the  treaty  of  Dec.  10,  1898.  They  relate  specifically  to  the 
extent  of  the  legislative  and  administrative  power  of  the  new  sovereign  (Downes 
V.  Bidwell,  182  U.  S.  244;  Dooley  v.  United  States,  183  U.  S.  151) ;  or  of  its 
executive  (Dooley  v.  United  States,  182  U.  S.  222) ;  or  to  the  application  of 
existing  revenue  laws  of  such  sovereign  on  imports  from  the  newly  acquired 
lands  (De  Lima  v.  Bidwell,  182  U.  S.  1 ;    Fourteen  Diamond  Rings  v.  United 

204 


IN  GENERAL  [§  123 

tory.  Divergent  practices  have  been  reflected  in  treaties  of  ces- 
sion. Respecting  the  significance  of  those  by  which  the  successor 
to  the  sovereignty  has  assumed  any  measure  of  the  burden  of  its 
predecessor,  there  has  been  controversy.^  Writers  who  have 
denied  that  such  agreements  prior  to  The  World  War  were  in- 
dicative of  a  practice  acknowledging  a  legal  duty,  have,  neverthe- 
less, admitted  that  the  transfer  of  sovereignty  oftentimes  begets 
a  moral  obligation  which  may  still  be  disregarded  without  im- 
propriety. Such  admissions  reveal  the  course  which  the  develop- 
ment of  the  law  should  follow,  \\1ien  it  is  perceived  that  a  moral 
obligation  rests  upon  a  State  to  accept  a  particular  burden  with 
respect  to  any  other  of  its  nationals,  there  is  at  once  apparent  a 
solid  reason  for  the  claim  that  practice  should  shape  itself  accord- 
ingly and  evolve  a  rule  of  law  stamping  evasion  with  an  illegal 
character.  It  is  appropriate,  therefore,  at  the  present  time  to 
observe  with  care  not  only  what  appears  to  be  the  evidence  of 
legal  duties  recognized  as  such,  but  also  the  nature  of  equities 
which  ought  to  affect  the  consciences  and  therefore  limit  the  free- 
dom of  action  of  the  transferees  of  territory. 

The  existence  and  extent  of  any  duty  causing  a  new  sovereign 
to  assume  the  public  debt  of  its  predecessor  must  be  examined 
with  reference  to  distinct  lines  of  inquiry.^  At  the  outset  it  is 
necessary  to  observe  the  relation  which  the  territory  subjected  to 
transfer  bears  to  the  domain  of  the  former  sovereign ;  whether, 
for  example,  as  in  the  case  of  the  relinquishment  by  Spain  of 
sovereignty  over  Cuba,  the  territory  concerned  is  merely  a  part, 

States,  183  U.  S.  176).  In  one  case,  Dooley  v.  United  States,  182  U.  S.  222, 
the  scope  of  the  right  of  the  President  to  exercise  the  powers  of  a  military 
occupant  preceding  the  ratification  of  a  treaty  of  cession  of  territory,  became  a 
matter  of  adjudication. 

1  See,  for  example,  Arthirr  B.  Keith,  Theory  of  State  Succession,  60-65, 
in  contrast  with  the  views  expressed  by  Max  Huber  in  Die  Staatensuccession. 
See,  also,  discussion  in  E.  M.  Borchard,  Diplomatic  Protection,  §  83 ;  Hall, 
Higgins'  7  ed.,  94,  note  1 ;  Coleman  Phillipson,  Termination  of  War  and 
Treaties  of  Peace,  322-326;   Oppenheim,  2  ed.,  I,  §§  80-85. 

2  Documents  in  Moore,  Dig.,  I,  334-385.  See,  also,  in  general,  Henri 
Appleton,  Des  effets  des  annexions  de  territoires  sur  les  dettes  de  I'Etat  demembre 
ou  annexe,  et  sur  celJes  des  Provinces,  D&partements,  etc.,  annexes,  Paris,  1894; 
Bonfils-Fauchille,  7  ed.,  §§222-228  (2);  E.  M.  Borchard,  Diplomatic  Pro- 
tection, §  83;  Bluntschli,  Droit  International  Codifie,  5  ed.,  French  transla- 
tion by  Lardy,  §§  46-61;  Arrigo  Cavaglieri,  La  Dottrina  della  Successions  di 
Stato  a  Stato,  Pisa,  1910;  Maurice  Costes,  Des  Cessions  de  Territoires,  Paris, 
1914;  Pasquale  Fiore,  International  Law  Codified,  English  translation  by 
Borchard,  §§  157-158;  Hall,  Higgins'  7  ed.,  §§  27-29;  A.  S.  Hershey,  "The 
Succession  of  States",  Am.  J.,  V,  285;  Max  Huber,  Die  Staatensuccession, 
Leipzig,  1898,  §§  125-175;  Arthur  B.  Keith,  Theory  of  State  Succession, 
London,  1907,  Chap.  VIII;  Oppenheim,  2  ed.,  I,  §§  80-84;  Coleman  Phillip- 
son,  Termination  of  War  and  Treaties  of  Peace,  London,  1916,  40-44,  322- 
326;   Westlake,  2  ed.,  I,  74-83. 

205 


§  123]     GENERAL  RIGHTS   OF   PROPERTY   AND   CONTROL 

and  a  minor  part,  of  that  domain ;  or  whether  it  is  one  of  several 
parts  into  which  the  territory  of  a  State  has  been  spHt  or  divided  ; 
or  whether,  as  in  the  case  of  the  annexation  of  Texas,  the  terri- 
tory transferred  embraces  the  entire  national  domain  of  a  State 
whose  life  as  such  is  thus  brought  to  an  end. 

As  the  character  and  design  of  a  fiscal  obligation  will  be  found 
to  play  an  important  part,  attention  must  be  directed  to  the  pur- 
poses for  which  a  debt  is  incurred  and  to  the  steps  taken  for  the 
benefit  of  the  creditor  to  impress  a  debt  upon  a  particular  terri- 
torial area. 

It  must  be  clear  that  the  validity  of  a  debt  is  not  decisive  of  the 
existence  or  scope  of  any  duty  to  be  borne  by  the  transferee  of  ter- 
ritory. On  the  other  hand,  the  circumstance  that  the  laws  and 
policy  of  the  latter  forbid  the  creation  of  a  fiscal  undertaking  by 
the  methods  employed  by  its  predecessor  is  not  necessarily  in- 
dicative of  the  obligation  which  may  rest  upon  the  new  sovereign.^ 

Throughout  the  examination  of  theory  and  practice  the  inquiry 
presents  itself  whether  there  is  an  underlying  principle  which,  re- 
gardless of  the  extent  of  its  influence  heretofore,  marks  the  path 
which  should  be  followed  hereafter. 


(2) 
Change  of  Sovereignty  over  Part  of  the  Territory  of  a  State 

(a) 

§  124.   General  Debts. 

Where  the  territory  of  which  the  sovereignty  has  undergone  a 
change  is  but  a  part  of  the  domain  of  the  State  from  which  it  is 
separated,  it  is  commonly  declared  that  the  new  sovereign  is  not 
burdened  with  any  portion  of  the  general  indebtedness  of  its  pred- 
ecessor, and  that  because  the  personality  of  the  latter  is  not  ex- 
tinct.^ Doubtless  this  statement  stands  uncontradicted  by  any 
widely  accepted  and  hence  authoritative  practice,  especially  where 
the  territory  transferred  constitutes,  according  to  any  standard  of 
measurement,  a  minor  part  of  the  domain  of  the  former  sovereign ; 

^  Memorandum  of  the  American  Peace  Commissioners  at  Paris,  Oct.  27, 
1898,  Senate  Doc.  No.  62,  55  Cong.,  3  Sess.,  Pt.  II,  96,  100;  Moore,  Dig.,  I, 
367. 

^  Hall,  Higgins'  7  ed.,  §  27;  Arthur  B.  Keith,  Theory  of  State  Succession, 
60-62;  Borchard,  Diplomatic  Protection,  §  83;  A.  S.  Hershey,  "The  Succes- 
sion of  States  ",  Am.  J.,  V,  285,  289-291.  Compare  Fiore,  International  Law 
Codified,  translation  by  Borchard,  §§  157-158. 

206 


GENERAL  DEBTS  [§  124 

and  this  may  be  admitted  in  the  face  of  numerous  treaties  burden- 
ing the  new  sovereign  with  a  portion  of  the  obligation.^  It  is 
beheved,  however,  that  the  underlying  principle  respecting  the 
course  which  the  new  sovereign  should  follow  has  a  broader  basis 
than  is  thus  disclosed. 

There  may  be  no  extinction  of  the  personality  of  a  State  by  dis- 
integration or  dismemberment  when  a  substantial  portion  of  its 
territory  amounting  to  as  much  as  one  quarter,  one  third  or  one 
half  of  its  domain  passes  to  a  successor.  In  such  case  the  general 
indebtedness  may  be  normally  deemed  to  be  as  closely  and  bene- 
ficially connected  with  the  territory  transferred  as  with  that  re- 
tained by  the  old  sovereign.^    It  would  be  unjust  to  permit  the 

1  For  collections  of  treaties  since  the  beginning  of  the  nineteenth  century 
where  there  has  been  an  apportionment  of  the  indebtedness  of  the  former 
sovereign,  see  Max  Huber,  Die  Staatensvccession,  §  127;  Moore,  Dig.,  I, 
339-343;  Coleman  Phillipson,  Termination  of  War  and  Treaties  of  Peace, 
324-326. 

Among  recent  instances  may  be  noted  Art.  X,  of  the  Treaty  of  Ijausanne, 
concluded  between  Italy  and  Turkey,  Oct.  18,  1912,  Am.  J.,  VIII,  Supp. 
58,  61,  where  it  was  declared  that  "The  Italian  Government  pledges  itself 
to  pay  annually  to  the  treasury  of  the  public  debt  for  the  Imperial  Govern- 
ment a  sum  corresponding  to  the  average  of  the  sums  which  in  each  of  the 
three  years  preceding  that  of  the  declaration  of  war  have  been  assigned  to  the 
service  of  the  public  debt  under  the  revenues  of  the  two  Provinces  [Tripoli 
and  CjTenaica]." 

The  Swedish-Norwegian  agreements  of  October,  1905,  providing  for  the 
separation  of  Sweden  from  Norway,  made  no  provision  for  the  debts  of  those 
countries.     The  texts  of  the  treaties  are  publi-shed  in  Am.  J.,  I,  Supp.  167. 

The  Treaty  of  Portsmouth  between  Russia  and  Japan  of  Aug.  23,  1905, 
providing  for  the  cession  to  Japan  of  the  Russian  lease  of  Port  Arthur,  Talien 
and  adjacent  territory  (Art.  V),  and  of  the  southern  part  of  the  island  of  Sag- 
halin  and  the  islands  adjacent  thereto  (Art.  IX),  made  no  mention  of  any  pub- 
lic obligations  of  the  grantor  relating  to  what  was  ceded.  The  text  of  the 
treaty  is  contained  in  For.  Rel.  1905,  824. 

2  In  the  case  of  Virginia  v.  West  Virginia,  220  U.  S.  1,  the  Supreme  Court 
of  the  United  States  in  determining  the  mode  of  apportioning  the  debt  of 
Virginia  between  that  State  and  West  Virginia,  reached  the  significant  con- 
clusion that  where  all  expenditures  for  which  the  debt  of  a  State  is  created 
have  the  ultimate  good  of  the  whole  State  in  view,  the  whole  State,  and  not 
the  particular  locality  in  which  the  improvements  are  made,  should  equally 
bear  the  burden.  Declared  Mr.  Justice  Holmes  in  the  course  of  the  unani- 
mous opinion  of  the  Court :  "  It  was  argued,  to  be  sure,  that  the  debt  of  Vir- 
ginia was  incurred  for  local  improvements  and  that  in  such  a  case,  even  apart 
from  the  ordinance,  it  should  be  divided  according  to  the  territory  in  which 
the  money  was  expended.  We  see  no  sufficient  reason  for  the  application  of 
such  a  principle  to  this  case.  In  form  the  aid  was  an  investment.  It  generally 
took  the  shape  of  a  subscription  for  stock  in  a  corporation.  To  make  the 
investment  a  safe  one  the  precaution  was  taken  to  require  as  a  condition  pre- 
cedent that  two  or  three  fifths  of  the  stock  should  have  been  subscribed 
for  by  solvent  persons  fully  able  to  pay,  and  that  one  fourth  of  the  subscrip- 
tions should  have  been  paid  up  into  the  hands  of  the  treasurer.  From  this 
point  of  view  the  venture  was  on  behalf  of  the  whole  State.  The  parties 
interested  in  the  investment  were  the  same,  wherever  the  sphere  of  corporate 
action  might  be.  The  whole  State  would  have  got  the  gain  and  the  whole 
State  must  bear  the  loss,  as  it  does  not  appear  that  there  are  any  stocks  of 

207 


§  124]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

transferee  to  gain  the  benefits  accruing  to  the  territory  acquired 
from  the  use  of  borrowed  funds  unless  the  obHgation  to  make  re- 
payment were  undertaken.^  It  will  be  seen  that  such  a  duty  is 
acknowledged  in  certain  cases  where  the  debt  is  essentially  a  local 
one  and  the  funds  are  employed  for  permanent  improvements  in 
the  territory  of  which  the  sovereignty  undergoes  a  change.  This 
simply  indicates  that  the  evidence  of  the  local  benefit  in  a  certain 
class  of  cases  is  suflBciently  strong  to  make  obvious  the  injustice 
of  permitting  the  new  sovereign  to  take  the  territory  unburdened 
with  the  debt.  It  should  not  be  admitted,  that  the  evidence  is 
necessarily  inconclusive  where  the  debt  is  a  general  rather  than  a 
local  one.  Wliile  there  may  be  question  as  to  which  party  should 
assume  the  burden  of  proof,  it  is  believed  that  in  the  formulation 
of  a  rule  of  law  designed  to  promote  justice  and,  therefore,  to  com- 
mand general  approval,  it  should  be  laid  down  first,  that  the  duty 
of  the  new  sovereign  to  bear  a  portion  of  the  debt  of  the  old  should 
be  dependent  upon  the  benefits  accruing  to  the  territory  trans- 
ferred ;  and  secondly,  that  such  benefits  should  not  necessarily  be 
deemed  to  be  non-existent  when  the  debt  is  general  rather  than 
local.^ 

value  on  hand.  .  .  .  All  the  expenditures  had  the  ultimate  good  of  the  whole 
State  in  view."     29-30. 

Cf.  also,  Coleman  PhilUpson,  Termination  of  War  and  Treaties  of  Peace,  322. 

1  This  principle  which  is  believed  to  be  accountable  for  the  disposition  of 
grantees  on  numerous  occasions  to  apportion  the  general  debt  of  a  grantor, 
was  given  apparent  recognition  in  Art.  VI  of  the  treaty  of  peace  between 
Denmark  on  the  one  hand  and  Sweden,  Great  Britain  and  Russia  on  the 
other,  concluded  at  Kiel,  Jan.  14,  1814,  in  which  it  was  declared  that  "as  the 
whole  debt  of  the  Danish  Monarchy  is  contracted  as  well  upon  Norway  as  the 
other  parts  of  the  Ivingdom,  so  His  Majesty  the  King  of  Sweden  binds  him- 
self ...  to  be  responsible  for  a  part  of  that  debt,  proportioned  to  the  popu- 
lation and  revenue  of  Non,^'a}^  By  public  debt  is  to  be  understood  that 
which  has  been  contracted  by  the  Danish  Government,  both  at  home  and 
abroad.  The  latter  consists  of  royal  State  obligations,  bank  bills,  and  paper 
money  formerly  issued  under  royal  authority,  and  now  circulating  in  both 
Kingdoms."  Rec.  Supp.,  V,  666,  668-669.  The  translation  is  that  given  in 
Coleman  Phillipson,  Termination  of  War  and  Treaties  of  Peace,  324. 

2  It  may  be  doubted  whether  the  contention  that  the  creditor  must  look  to 
the  State  with  which  he  contracts  for  repayment  so  long  as  its  personality 
as  such  exists,  is  fairly  responsive  to  the  understanding  of  the  contracting 
parties,  at  least  in  cases  such  as  are  suggested  in  the  text. 

The  credit  of  a  contracting  State  rests  upon  the  sum  total  of  its  economic 
and  political  assets,  of  which  its  territorial  domain  and  the  resources  thereof 
constitute  the  foundation.  As  that  domain  is  essential  to  the  verj^  existence 
of  the  borrower  as  a  State,  and  as  the  magnitude  of  the  former  determines 
the  fiscal  strength  of  the  sovereign,  it  seems  arbitrary  to  impute  to  a  creditor 
an  intention  to  look  merely  to  the  personality  of  that  sovereign  as  a  debtor 
for  the  repayment  of  a  loan,  when  it  is  another  circumstance,  namely,  the 
territorial  possessions  of  the  State  which  induced  the  creditor  to  lend.  He 
might  be  fairly  said  to  lend  to  territory  as  such  controlled  by  governmental 
agencies,  and  to  rely  in  special  degree  upon  the  indestructibility  of  the  terri- 
tory enabling  those  agencies  to  maintain  a  social  organization  and  economic 

208 


OENERAL  DEBTS  [§  124 

Such  a  rule  points  itself  to  the  situations  where  it  would  be  in~ 
applicable,  and  those,  for  sake  of  convenience,  might  well  be  agreed 
upon.  Thus  if  a  debt  were  incurred  for  a  purpose  essentially  hos- 
tile to  the  interests  of  the  territory  transferred,  as  manifested  by  the 
opposition  of  a  majority  of  the  inhabitants  or  of  the  local  authori- 
ties thereof  to  the  creation  of  the  fiscal  obligation,  or  by  the  em- 
ployment of  the  funds  so  obtained  to  hold  in  subjection  those  in- 
habitants, or  to  repress  their  endeavor  to  bring  about  the  change  of 
sovereignty  actually  resulting,  the  duty  of  apportionment  would 
not  arise.  Again,  where  the  territory  transferred  had  previously 
been  taken  by  the  transferor  from  the  transferee  through  conquest, 
there  might  be  solid  reason  to  contend  that  no  part  of  the  general 
indebtedness  of  that  grantor  incurred  during  the  period  while  it 
was  sovereign  over  the  territory  relinquished  should  be  deemed 
necessarily  beneficial  to  it.^  In  the  case  of  a  change  of  sovereignty 
over  the  territory  of  a  distant  colony  or  island  constituting  a 
relatively  unimportant  part  of  the  domain  of  the  parent  State, 
or  of  which  the  fiscal  system  was  an  entity  distinct  from  that  of 
such  State,  it  might  be  reasonable  to  deny  that  any  part  of  the 
general  indebtedness  of  the  old  sovereign  should  pass  to  the  new. 

These  and   other  limitations,  easily  discernible  and   possibly 

and  political  life  therein.  In  this  respect  a  loan  to  a  State  maj'  perhaps  be 
regarded  differently  from  one  to  an  individual  where  reliance  is  placed  upon 
his  general  credit.  It  seems  hardly  reasonable  to  impute  to  a  creditor  a  will- 
ingness to  loan  money  to  a  State  with  no  expectation  of  securing  reimburse- 
ment from  any  source  other  than  the  original  debtor  in  case  a  very  large  por- 
tion of  its  territory  passes  into  the  hands  of  a  new  sovereign. 

In  many  cases  the  question  as  to  the  effect  of  a  change  of  sovereignty  does 
not  enter  the  mind  of  the  creditor  at  the  time  when  the  loan  is  concluded 
and  the  contract  perfected.  While  this  circumstance  renders  doubtful  the 
wisdom  of  attempting  to  impute  to  him  reasons  which  he  did  not  then  possess, 
although  they  might  have  exerted  a  decisive  influence  upon  him  had  he  been 
duly  apprised  of  them,  it  does  not  forbid  the  inference  that  his  conduct  would 
have  been  surely  affected  in  a  definite  way  had  he  contemplated  the  con- 
tingency which  later  arose.  It  ought  to  be  clear  that  it  is  unjust  to  presume 
that  a  creditor  possessed  an  intention  at  the  time  the  loan  was  contracted, 
both  adverse  to  his  interests,  and  one  which  in  a  particular  case  no  prudent 
lender  would  have  been  likely  to  entertain.  Illustrative  of  a  contract  indi- 
cating no  contemplation  of  a  change  of  sovereignty  bj'  the  parties  to  the  ar- 
rangement, see  Serralles'  Succession  v.  Esbri,  200  U.  S.  103. 

1  This  limitation  would  seem  to  apply  in  a  case  such  as  that  respecting 
Alsace-Lorraine,  especially  in  view  of  the  fact  that  there  was  no  apportion- 
ment of  the  national  debt  of  France  upon  the  cession  of  that  portion  of  the 
French  domain  to  Germany  by  the  Treaty  of  Frankfort  of  May  10,  1871. 
It  should  be  observed,  however,  that  by  the  additional  convention  of  December 
11,  1871,  Brit,  and  For.  State  Pap.,  LXII,  92,  "Germanj^  agreed  to  assume  all 
pensions,  civil,  military,  and  ecclesiastical,  due  to  persons  who  should  retain 
their  domicile  in  the  ceded  territory ;  to  repay  moneys  deposited  as  security ; 
and  to  recognize  and  confirm  concessions  for  ways,  canals,  and  mines,  as  well 
as  contracts  for  the  renting  or  cultivating  of  demesnial  property."  Moore, 
Dig.,  I,  341. 

209 


§  124]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

susceptible  of  classification,  do  not  weaken  the  applicability  of 
the  underlying  principle,  or  rob  of  its  inequitableness  the  conten- 
tion that  the  general  indebtedness  of  a  former  sovereign  confers 
upon  the  territory  transferred  no  appreciable  benefit  capable  of 
fair  appraisal  or  just  apportionment.^ 

Since  the  American  Revolution  the  United  States  has  on  several 
occasions  succeeded  to  the  sovereignty  over  territory  constituting 
a  portion  of  the  domain  of  another  State.  Treaties  of  cession  have 
been  concluded  with  France  (1803),  Spain  (1819  and  1898),  Mexico 
(1848  and  1853),  Russia  (1867)  and  Denmark  (1916).  No  one  of 
these  has  purported  to  impose  upon  the  United  States  the  obliga- 
tion to  assume  any  portion  of  the  public  debt  of  its  predecessor. 
In  certain  instances  the  grantee  has  undertaken  to  pay  claims  of 
its  citizens  against  the  grantor ;  ^  and  in  the  treaty  with  Denmark 
providing  for  the  cession  of  the  Danish  West  Indies,  the  mainte- 
nance of  certain  specified  concessions  was  undertaken.^  The  treaty 
with  Panama  of  November  18,  1903,  granting  to  the  United  States 
in  perpetuity  the  use,  occupation  and  control  of  a  zone  of  land  for 
the  construction  and  maintenance  of  an  interoceanic  canal,  de- 
clared that  the  rights  and  privileges  conferred  were  understood  to 
be  free  from  all  anterior  debts,  liens,  trusts,  or  liabilities,  or  con- 
cessions, or  privileges  to  other  governments,  corporations,  syndi- 
cates, or  individuals,  and  that  consequently  all  claims  arising 
therefrom  should  be  preferred  against  the  Government  of  Panama 
rather  than  against  that  of  the  United  States  "  for  any  indemnity 
or  compromise  which  may  be  required."  ^ 

1  According  to  the  declaration  of  independence  of  the  Czecho-Slovak  Na- 
tion adopted  by  its  Provisional  Government  at  Paris,  Oct.  18,  1918,  it  was 
announced  that  "Our  nation  will  assume  its  part  of  the  Austro-Hungarian 
pre-war  public  debt ;  the  debts  for  this  war  we  leave  to  those  who  incurred 
them."  Official  Bulletin,  Oct.  19,  1918,  Vol.  II,  No.  441,  p.  3.  See,  also, 
in  this  connection  Board  of  Trade  Journal,  London,  Dec.  5,  1918,  Vol.  CI, 
new  series.  No.  1149,  p.  720. 

2  See,  for  example,  Art.  IX,  treaty  with  Spain,  Feb.  22,  1819,  Malloy's 
Treaties,  II,  1654;  Art.  VII,  treaty  with  Spain,  Dec.  10,  1898,  id.,  1692;  Art. 
XIII,  treaty  with  Mexico,  Feb.  2,  1848,  id.,  I,  111.3. 

^  Art.  Ill,  convention  of  Aug.  4,  1916,  Treaty  Series,  No.  629,  Am.  J.,  XI, 
Supp.  53,  55.  It  may  be  observed  that  Section  3  of  this  Article  declared  :  "  The 
pecuniary  claims  now  held  by  Denmark  against  the  colonial  treasuries  of  the 
islands  ceded  are  altogether  extinguished  in  consequence  of  this  cession  and 
the  United  States  assumes  no  responsibility  whatsoever  for  or  in  connection 
with  these  claims.  Excepted  is,  however,  the  amount  due  to  the  Danish 
treasury  in  account  current  with  the  West  Indian  colonial  treasuries  pur- 
suant to  the  making  up  of  accounts  in  consequence  of  the  cession  of  the  is- 
lands ;  should  on  the  other  hand  this  final  accounting  show  a  balance  in  favor 
of  the  West  Indian  colonial  treasuries,  the  Danish  treasury  shall  pay  that 
amount  to  the  colonial  treasuries." 

4  Art.  XXI,  Malloy's  Treaties,  II,  1355. 

210 


PROVISIONS  OF  GERMAN   TREATY  OF  PEACE     [§  125 

§  12o.    The  Same. 

The  treaty  of  peace  with  Germany,  of  June  28,  1919,  appeared 
to  heed  the  principle  of  apportionment  above  advocated.  Ac- 
cording to  Article  254,  the  Powers  to  which  German  territory 
was  ceded  undertook,  subject  to  qualifications  made  in  Article  255, 
to  pay : 

(1)  A  portion  of  the  debt  of  the  German  Empire  as  it  stood 
on  August  1,  1914,  calculated  on  the  basis  of  the  ratio  between 
the  average  for  the  three  financial  years  1911,  1912,  1913,  of 
such  revenues  of  the  ceded  territory,  and  the  average  for  the 
same  years  of  such  revenues  of  the  whole  German  Empire  as 
in  the  judgment  of  the  Reparation  Commission  are  best  calcu- 
lated to  represent  the  relative  ability  of  the  respective  terri- 
tories to  make  payment ; 

(2)  A  portion  of  the  debt  as  it  stood  on  August  1,  1914,  of 
the  German  State  to  which  the  ceded  territory  belonged,  to 
be  determined  in  accordance  with  the  principle  stated  above.^ 

Such  portions  were  to  be  determined  by  the  Reparation  Com- 
mission, The  method  of  discharging  the  obligation,  both  in  respect 
of  capital  and  of  interest,  so  assumed  was  to  be  fixed  by  that  Com- 
mission. It  was  declared  that  such  method  might  take  the  form, 
inter  alia,  of  the  assumption  by  the  Power  to  which  the  territory 
was  ceded  of  Germany's  liabilit}^  for  the  German  debt  held  by  its 
nationals.^  Article  255  provided  for  exceptions  to  the  above  pro- 
visions. Inasmuch  as,  in  1871,  Germany  had  refused  to  under- 
take any  portion  of  the  burden  of  the  Erench  debt,  it  was  declared 
that  France  should  be,  in  respect  of  Alsace-Lorraine,  exempt  from 
any  payment  under  Article  254.  In  the  case  of  Poland,  that 
portion  of  the  debt  which,  in  the  opinion  of  the  Reparation  Com- 
mission, was  attributable  to  the  measures  taken  by  the  German 
and  Prussian  Governments  for  the  German  colonization  of  Poland 
was  to  be  excluded  from  the  apportionment.  In  the  case  of  all 
ceded  territories  other  than  Alsace-Lorraine,  it  was  provided  that 
that  portion  of  the  debt  of  the  German  Empire  or  German  States, 
which  in  the  opinion  of  the  Reparation  Commission,  represented 
expenditures  by  the  Governments  of  that  Empire  or  of  those  States 

1  Senate  Doc.  No.  49,  66  Cong.,  1  Sess. 

2  It  was  provided,  however,  in  this  connection  that  in  the  event  of  the 
method  adopted  involving  any  payments  to  the  German  Government,  such 
payments  should  be  transferred  to  the  Reparation  Commission  on  account 
of  the  sums  due  for  reparation  so  long  as  any  balance  in  respect  of  such  sums 
should  remain  unpaid. 

211 


§  125]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

ui)on  government  properties  referred  to  in  a  later  Article  (256), 
should  be  excluded  from  the  apportionment.^  In  the  case  of  the 
former  German  territories,  including  colonies,  protectorates  or 
dependencies,  to  be  administered  by  a  Mandatory  pursuant  to 
the  treaty,  it  was  declared  that  neither  the  territory  nor  the  ]\Ian- 
datory  Power  should  be  charged  with  any  portion  of  the  debt  of 
the  German  Empire  or  States.^ 

It  is  not  without  significance  that  the  principle  of  apportion- 
ment was  applied  to  the  general  as  well  as  local  indebtedness  of 
Germany,  a  result  doubtless  attributable  to  the  opinion  of  the 
principal  Allied  and  Associated  Governments  that  both  forms  of 
obligation  were  to  be  deemed  as  closely  and  beneficially  related 
to  the  territory  transferred  as  to  that  retained  by  the  former  sov- 
ereign. The  problem  of  making  equitable  distribution  of  the  bur- 
den of  the  German  pre-war  debt,  both  imperial  and  state,  was, 
however,  essentially  difficult  and  hardly  capable  of  immediate 
solution.     Therefore,  it  was  left  to  the  Reparation  Commission.^ 

(b) 
§  126.    Local  Debts. 

It  seems  to  be  acknowledged  that  obligations  which  are  im- 
pressed upon  the  territory  transferred  in  such  a  way  as  to  be 
specially  associated  with  it,  and  as  manifesting  at  least  no  unbene- 

^  The  reason  for  this  last  exchision  was  that  such  properties  were  to  pass 
to  the  grantees  of  territories  ceded,  and  be  paid  for  by  them  to  the  Reparation 
Commission  for  the  credit  of  Germany,  on  account  of  the  sums  due  by  Ger- 
many for  reparation.     Art.  256. 

According  to  Art.  XXI  of  the  treaty  signed  in  behalf  of  the  United  States, 
the  British  Empire,  France,  Italy,  and  Japan,  on  the  one  hand,  and  Poland 
on  the  other,  of  June  28,  1919,  Poland  agreed  to  assume  responsibility  for 
such  portion  of  the  Russian  public  debt  and  other  Russian  public  liabilities 
of  any  kind  as  might  be  assigned  to  her  under  a  special  convention  between 
the  principal  Allied  and  Associated  Powers,  on  the  one  hand,  and  Poland  on 
the  other,  to  be  prepared  by  a  commission  appointed  by  the  above  States.  It 
was  declared  that  should  the  Commission  not  arrive  at  an  agreeinent,  the 
point  at  issue  should  be  referred  to  the  League  of  Nations  for  immediate  arbi- 
tration.    British  Treaty  Series  No.  8,  1919,  Cmd.  223. 

2  Art.  257. 

3  In  the  Reply  of  the  Allied  and  Associated  Powers  of  June  16,  1919,  to  the 
Observations  of  the  German  Delegation  at  Versailles,  on  conditions  of  peace, 
it  was  said  :  "The  partition  of  the  pre-war  debt  of  the  German  Empire  and  of 
the  German  States  will  be  made  in  proportion  to  the  contributory  power  of 
the  various  ceded  territories.  The  determination  of  this  contributory  power 
is  obviously  very  delicate,  in  view  of  the  diversity  of  fiscal  systems  in  the 
different  German  confederated  States.  Therefore  it  has  not  been  thought 
desirable  to  settle  this  question  at  present,  and  it  has  been  left  to  the  Repara- 
tion Commission  to  estimate  which  of  Germany's  revenues  will  make  it  pos- 
sible to  compare  the  resources  of  the  ceded  territories  and  those  of  the  Empire." 
Misc.  No.  4,  1919  [Cmd.  258],  p.  38. 

212 


LOCAL  DEBTS  [§  126 

ficlal  connection  therewith,  pass  to  the  new  sovereign.^  Difficul- 
ties arise,  however,  in  determining  what  debts  are  to  be  deemed  to 
possess  such  a  character. 

Where  the  proceeds  of  a  debt  are  devoted  to  the  erection  of 
permanent  improvements  in  the  territory  transferred,  the  con- 
nection with  the  place  and  the  purpose  of  the  expenditure  suffice 
to  indicate  the  reason  for  the  assumption  of  the  obligation  by  the 
new  sovereign.^  In  such  case  the  mode  by  which  the  change  of 
sovereignty  is  effected  is  believed  to  be  unimportant. 

A  State  may  loosely  associate  a  public  debt  with  the  territory 
of  a  particular  portion  of  its  domain  over  which  sovereignty  is 
subsequently  relinquished,  as  a  means  of  raising  funds  for  purposes 
unrelated  to  any  definite  local  interest.  In  such  a  case  where  the 
funds  are  not  locally  employed,  the  debt  is  not  to  be  regarded  as 
peculiarly  a  local  one.  Any  duty  on  the  part  of  the  transferee  of 
the  territory  concerned  must  depend  upon  whether  this  item  as  a 
portion  of  the  general  indebtedness  of  the  former  sovereign  is 
to  be  regarded  as  subject  to  apportionment.  There  may  be  great 
difficulty  in  concluding  that  it  should  be  so  treated. 

There  would  clearly  be  no  fiscal  burden  imposed  upon  the  new 
sovereign  in  case  the  debt  were  incurred  for  a  purpose  distinctly 

^  "It  seems  to  be  the  consensus  of  opinion  among  authorities  on  inter- 
national law,  that,  upon  the  separation  of  part  of  a  country  from  the  sov- 
ereignty over  it,  debts  created  for  the  benefit  of  the  departing  portion  of  the 
country  go  with  it  as  charges  upon  its  government."  Opinion  of  Attorney- 
General  Griggs,  July  26,  1900,  23  Ops.  Attys.-Gen.,  181,  187,  citinq  Hall's 
Int.  L.,  4th  ed.,  p.  98;  Rivier,  Droit  des  Gens,  1,  pp.  70,  72;  Calvo,  Le  Droit 
Inter.,  1,  Sec.  101;  4,  Sec.  2487;  Phillimore's  Int.  L.,  2  ed..  Vol.  1,  Part  2,  Sees. 
136,  137  ;  The  Tarquin,  Moore  on  Arbitrations,  V,  4617 ;  Lawrcnce'.s  Whcaton, 
pp.  53,  54;  Wharton's  Int.  L.  Dig.,  Sec.  5;  Anglo  Saxon  Review,  June,  1899, 
Mr.  Reed's  article  concerning  the  Philippine  debt,  etc. ;  Dana's  Wheaton's 
Int.  L.,  Sec.  30,  note;  Glenn's  Int.  L.,  Sec.  28;  Field's  International  Code, 
Sees.  24  and  26;  Gardner's  Institutes  of  Int.  L.,  p.  52;  Senate  Doc.  62,  55 
Cong.,  3  Sess.,  Part  2,  p.  50. 

Mr.  Frelinghuysen,  Secy,  of  State,  December  29,  1883,  in  a  communication 
to  Mr.  Phelps,  American  Minister  to  Peru,  declared  that  "The  opinion  of  the 
United  States  heretofore  has  been  that  as  the  foreign  obligations  of  Peru,  in- 
(^urred  in  good  faith  before  the  war,  rested  upon  and  were  secured  by  the 
products  of  her  guano  deposits,  Chile  was  under  a  moral  obligation  not  to  ap- 
propriate that  security  without  recognizing  the  lien  existing  thereon."  MS. 
Inst.  Peru,  XVII,  33,  35;  Moore,  Dig.,  I,  335.  Prof.  Westlake,  in  comment- 
ing on  this  despatch  says  :  "There  was  perhaps  no  necessity  to  qualify  the  ob- 
ligation as  moral,  where  the  guano  deposits  had  been  pledged  as  security." 
Int.  L.,  2  ed.,  I,  63. 

See,  also,  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Cowie,  June  15,  1885,  156  MS. 
Dom.  Let.  1;  Moore,  Dig.,  I,  336;  correspondence  between  the  British  Min- 
ister in  Chile  and  the  Chilean  Minister  of  Foreign  Relations,  contained  in 
U.  S.  For.  Rel.  1888,  Part  1, 182-186;  Moore,  Dig.,  I.  ,336,  note;  text  of  Chil- 
ean-Peruvian treaty  of  peace  of  Oct.  20,  1883,  For.  Rel.  1883,  731. 

^Oppenheim,  2  ed.,  II,  Sec.  84;  Coleman  Phillipson,  Termination  of  War 
and  Treaties  of  Peace,  42,  326. 

213 


§  126]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

hostile  to  the  interests  of  the  inhabitants  of  the  territory  trans- 
ferred. The  United  States  so  regarded  the  design  with  which 
Spain  incurred  the  so-called  Cuban  debt  prior  to  the  relinquish- 
ment of  sovereignty  over  Cuba.  It  was  contended  by  the  Spanish 
peace  commissioners  at  Paris  in  1898,  that  the  United  States 
should  not  only  accept  the  cession  of  Cuba,  but  also  assume  re- 
sponsibility for  the  payment  of  the  Cuban  debt.^  In  denying  that 
the  debt  passed  to  the  successor  to  the  sovereignty,  still  less  to 
the  United  States,  the  American  commissioners  were  able  to  show 
that: 

The  debt  was  contracted  by  Spain  for  national  purposes, 
which  in  some  cases  were  alien  and  in  others  actually  adverse 
to  the  interests  of  Cuba ;  that  in  reality  the  greater  part  of  it 
was  contracted  for  the  purpose  of  supporting  a  Spanish  army 
in  Cuba ;  and  that,  while  the  interest  on  it  has  been  collected 
by  a  Spanish  bank  from  the  revenues  of  Cuba,  the  bonds  bear 
upon  their  face,  even  where  those  revenues  are  pledged  for  their 
payment,  the  guarantee  of  the  Spanish  nation.^ 

1  Annex  2  to  protocol  3  of  conference  of  Oct.  7,  1898,  Senate  Doc.  62,  55 
Cong.,  3  Sess.,  Fart  II,  26;  Moore,  Dig.,  1,351-352.  In  view  of  the  terms 
of  the  peace  protocol  of  Aug.  12,  1898,  providing  for  the  relinquishment  rather 
than  the  cession  of  Cuba,  the  American  commissioners  had  no  difficult}'  in 
showing  that  the  United  States  was  under  no  obligation  to  become  the  grantee 
of  that  island. 

2  Senate  Doc.  62,  55  Cong.,  3  Sess.,  Ft.  II,  100;  Moore,  Dig.,  I,  367.  In 
the  course  of  their  memorandum  the  American  commissioners  declared  that 
the  finances  of  the  island  were  exclusively  controlled  by  the  Spanish  Govern- 
ment; that  the  debt  was  in  no  sense  created  by  Cuba  as  a  Province  or  De- 
partment of  Spain,  or  by  the  people  of  the  island;  that  the  "debt-creating 
power,  such  as  commonly  belongs  to  communes  or  municipal  corporations, 
never  was  delegated  to  Cuba."  In  examining  the  origin  and  history  of  the 
debt  the  American  commissioners  called  attention  to  the  fact  that  prior  to 
1861,  no  Cuban  debt  existed;  that  the  surplus  revenues  of  the  island  were 
not  expended  for  its  benefit  but  sent  to  Madrid;  that  from  1866  to  1868,  a 
so-called  Cuban  debt  had  been  created  for  imperial  rather  than  for  insular  pur- 
poses, such  as  to  meet  the  expenses  of  the  attempt  to  reincorporate  San  Do- 
mingo into  the  Spanish  dominions,  and  of  the  expedition  to  Mexico;  that 
from  1868  to  1878,  occurred  the  10  years'  war  for  Cuban  independence,  the 
expenses  of  which  were  imposed  upon  the  island,  so  that  in  1880,  the  so- 
called  Cuban  debt  amounted  to  upwards  of  $170,000,000;  that  an  attempt 
to  consolidate  these  debts  resulted  in  the  creation  of  the  so-called  "  Billetes 
hipotecarios  de  la  Isla  de  Cuba",  amounting  to  $124,000,000;  that  the  Span- 
ish Government  undertook  to  pay  the  principal  and  interest  of  this  out  of 
Cuban  revenues,  but  that  on  the  face  of  the  bonds  "the  Spanish  nation" 
(la  Nacion  espahola)  guaranteed  their  payment;  that  the  interest  charge 
for  the  debt,  amounting  to  $7,838,200  annually,  was  collected  through  a  Span- 
ish fiscal  agency  in  Cuba,  collecting  daily  from  the  custom-house  at  Habana 
upwards  of  $33,000;  that  in  1890,  a  new  issue  of  bonds  was  authorized  by  the 
Spanish  Government,  amounting  to  $175,000,000,  and  .similarly  guaranteed 
for  the  purpose  of  refunding  the  existing  debt,  and  to  inciu"  new  indebted- 
ness contracted  after  1886 ;  that  only  a  portion  of  this  last  issue  had  been  dis- 
posed of  when  the  insurrection  broke  out  in  1895;  that  the  Spanish  Gov- 
ernment then  proceeded  to  issue  these  bonds  in  order  to  raise  funds  with 

214 


LOCAL  DEBTS  [§  126 

Replying  to  the  contentions  of  the  Spanish  commissioners  that 
the  bonds  were  mortgage  bonds,  the  American  commissioners 
called  attention  to  the  distinction  between  a  pledge  of  revenues 
yet  to  be  derived  from  taxation,  and  a  mortgage  of  property. 
They  adverted  to  the  fact  that  the  Spanish  Government  had  it- 
self always  regarded  the  pledge  of  Cuban  revenues  as  within  its 
own  control  and  capable  of  modification  or  withdrawal  at  will, 
without  affecting  the  obligation  of  the  debt.  In  proof  of  this  they 
quoted  the  language  of  a  decree  of  autonomy  signed  by  the  Queen 
Regent  on  November  25,  1897.      Therefore,  they  concluded  : 

No  more  in  the  opinion  of  the  Spanish  government,  there- 
fore, than  in  point  of  law,  can  it  be  maintained  that  that  Govern- 
ment's promise  to  devote  to  the  payment  of  a  certain  part  of 
the  national  debt  revenues  yet  to  be  raised  by  taxation  in  Cuba, 
constituted  in  any  legal  sense  a  mortgage.  The  so-called 
pledge  of  those  revenues  constituted  in  fact,  and  in  law,  a  pledge 
of  the  good  faith  and  ability  of  Spain  to  pay  to  a  certain  class 
of  her  creditors  a  certain  part  of  her  future  revenues.  They 
obtained  no  other  security,  beyond  the  guarantee  of  the  "  Span- 
ish Nation  ",  which  was  in  reality  the  only  thing  that  gave  sub- 
stance or  value  to  the  pledge,  or  to  which  they  could  resort 
for  its  performance.^ 

By  reason  of  the  nature  of  the  debt,  together  with  the  known 
purposes  for  which  it  was  created,  it  is  believed  that  the  position 
of  the  United  States  was  unassailable.^ 

A  State  may  endeavor  to  impress  a  debt  upon  territory  of  which 
the  sovereignty  subsequently  undergoes  a  change,  by  making  a 
definite  pledge  of  revenues  to  be  derived  therefrom.  The  debtor 
may  observe  all  of  the  requirements  of  its  own  law  in  the  attempt 
to  place  irrevocably  beyond  its  reach  for  any  other  purpose  the 
source  of  revenue  on  which  it  is  agreed  that  the  creditor  should  rely 
as  security  for  the  loan.     The  creation  of  the  lien  may  be  in  fact 

which  to  overcome  the  revolution;  that  those  outstanding  Jan.  1,  1898, 
amounted  to  $171,710,000 ;  that  an  additional  war  loan  known  as  the  "  Cuban 
War  Emergency  Loan",  amounting  to  $169,000,000  of  5  per  cent,  bonds,  was 
thereupon  floated ;  that  although  in  these  bonds  no  mention  was  made  of  the 
Cuban  revenues,  the  issue  was  regarded  as  constituting  a  part  of  the  Cuban 
debt,  "together  with  various  unliquidated  debts,  large  in  amount,  incurred 
by  the  Spanish  authorities  in  opposing  by  arms  the  independence  of  Cuba." 
Senate  Doc.  62,  55  Cong.,  3  Sess.,  Part  it  48-50;   Moore,  Dig.,  I,  356-359. 

1  See  Senate  Doc.  62,  55  Cong.,  3  Sess.,  Part  II,  201 ;   Moore,  Dig.,  I,  384. 

^  Declares  Westlake :  "When  Cuba  was  emancipated  from  Spain  by  the 
Spanish-American  War,  it  could  scarcely  be  expected  that  either  she  or  the 
United  States  should  recognize  the  loans  which  Spain  had  charged  on  her  for 
the  cost  of  repressing  the  Cubans,  during  the  long  and  intermittent  struggle 
of  which  her  emancipation  was  the  close."     Int.  L.,  2  ed.,  I,  78-79. 

215 


§  126]     GENERAL    RIGHTS   OF    PROPERTY   AND   CONTROL 

definitely  manifested  in  the  formal  and  valid  undertaking  of  the 
obligor.  The  question  presents  itself  whether  upon  the  change  of 
sovereignty  such  acts  suffice  to  bind  the  transferee  regardless  of  the 
purposes  for  which  the  funds  are  employed,  and  irrespective  also  of 
the  consent  of  the  inhabitants  of  the  territory  concerned.  If  it  be 
admitted  in  a  given  case  that  such  territory  is  sought  to  be  utilized 
by  the  sovereign  creating  the  debt  because  its  resources  offer  a  basis 
of  credit,  and  without  any  design  of  employing  the  funds  received 
within  that  territory,  there  is  ground  for  the  contention  that  the 
debt  is  a  distinct  detriment  thereto.  The  detriment  may  be  more 
obvious  where  those  funds  are  used  for  a  purpose  sharply  adverse 
to  the  interests  of  that  territory,  as  in  the  attempt  to  suppress  a 
revolution  which  proves  successful  and  leads  to  the  transfer  of 
sovereignty  which  ensues.  The  issue  in  such  cases  is  simply  whether 
the  endeavor  to  mortgage  the  resources  of  the  territory  subjects 
it  to  a  burden  otherwise  not  fastened  upon  it  after  the  pledgor 
relinquishes  its  sovereignty. 

The  value  of  any  pledge  as  such  depends  upon  the  success  of  the 
pledgor  in  putting  beyond  his  own  reach  and  contingently  within 
that  of  the  pledgee  the  valuable  asset  relied  upon  for  the  purpose 
of  effecting  the  loan.  A  pledgor  State  necessarily  encounters 
difficulty  in  following  such  a  course,  and  that  for  the  reason  that 
its  territory,  if  occupied  by  human  beings,  is  not,  like  a  mere  chattel, 
to  be  subjected  to  such  fiscal  or  other  use  as  may  suit  the  conven- 
ience or  caprice  of  the  existing  governmental  authority.  On 
principle  the  resources  of  that  territory  should  not  be  regarded 
as  capable  of  complete  hypothecation  save  under  conditions  which 
do  not  appear  to  be  essentially  adverse  to  the  welfare  of  the  occu- 
pants. Thus  it  is  not  believed  that  a  pledgor  State  should  be 
deemed  to  possess  the  power  to  fasten  upon  a  portion  of  its  own 
domain  a  financial  burden  admittedly  hostile  to  the  interests  of 
the  inhabitants  thereof  beyond  the  time  when  the  territory  ceases 
to  be  under  the  sovereignty  of  the  pledgor.^ 

In  applying  such  a  principle  great  caution  should  be  exercised 
in  concluding  that  a  pledge  sought  to  be  created  is  hostile  to  local 
interests.  In  each  case  the  problem  should  be  approached  with- 
out bias.  It  must  be  assumed  to  be  as  reasonable  for  a  sovereign 
to  create  a  lien  favorable  to  territory  affected  by  it  as  to  do  other- 
wise. Possibly  no  habit  on  the  part  of  impoverished  States  gen- 
erally, if  one  should  be  found  to  exist,  should  suffice  to  justify  any 

^  It  is  believed  that  this  principle  is  likely  to  secure  general  recognition 
notwithstanding  difficulties  which  may  attend  its  application. 

216 


CERTAIN  CONCLUSIONS  [§  127 

sinister  presumption.  Doubtless  every  circumstance  shedding 
light  on  the  fiscal  policy  of  the  pledgor  State  with  respect  to  that 
portion  of  its  domain  upon  which  a  lien  was  sought  to  be  fastened, 
should  be  subjected  to  scrutiny,  and  particularly  any  evidence  of 
the  actual  as  well  as  avowed  purpose  of  the  borrower  in  incurring 
the  debt. 

It  may  be  doubted  whether  a  lack  of  proof  of  actual  expenditures 
of  the  funds  obtained  within  the  territory  burdened  with  payment 
should  be  regarded  as  a  necessary  indication  of  hostile  design.  It 
is  conceivable  that  there  might  have  been  general  local  consent 
to  a  pledge  of  local  revenues  for  the  sake  of  the  necessities  of  the 
country  at  large.  Although  it  might  be  urged  that  in  such  case 
any  local  benefits  derived  from  the  pledge  should  be  deemed  to 
be  limited  in  point  of  time  to  the  period  within  which  the  burdened 
territory  constituted  a  part  of  the  domain  of  the  pledgor,  there 
might  be  reason  for  hesitation  in  acknowledging  that  the  change 
of  sovereignty  should,  in  such  a  case,  free  the  transferee  of  the 
territory  from  the  obligation  sought  to  be  attached  to  it.^ 

It  is  not  believed  that  the  permanence  of  the  association  of  a 
debt  with  a  particular  territory  is  necessarily  affected  by  the  mode 
by  which  a  change  of  sovereignty  is  accomplished.  In  case  a 
transfer  is  caused  by  the  strong  arm  of  a  conqueror  or  by  the  suc- 
cess of  a  revolution,  the  principle  applicable  to  the  fiscal  obligations 
of  the  new  sovereign  would  not  appear  to  differ  from  that  obtain- 
ing in  case  of  a  cession  not  induced  by  force.  The  fact  of  conquest 
or  revolution  may,  however,  prove  to  be  of  significance  as  showing 
that  a  particular  debt  was  incurred  for  the  purpose  of  overcoming 
such  manifestation  of  force,  and  should,  therefore,  be  looked  upon 
as  adverse  to  the  interests  of  the  territory  of  which  the  sovereignty 
was  changed  by  force.  It  may  be  that  territory  wrung  by  con- 
quest from  a  weaker  foe  is  burdened  with  a  debt  distinctly  bene- 
ficial to  local  interests.  In  such  event  it  is  not  believed  that  the 
new  sovereign  should  escape  the  burden  thereof. 

(c) 
§  127.    Certain  Conclusions. 

The  distinction  frequently  laid  down  between  the  general  and 
local  debts  of  a  contracting  State  has  not  always  served  a  useful 

^  It  would  be  logical  in  such  a  case,  as  has  already  been  observed,  to  re- 
gard the  debt  as  a  part  of  the  general  debt  of  the  former  sovereign,  and  there- 
upon to  inquire  whether  as  a  part  of  such  an  obligation  there  was  evidence 
of  such  a  local  benefit  as  would  give  rise  to  a  duty  of  apportionment. 

217 


§  127]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

purpose,  for  it  has  tended,  in  the  case  of  the  former,  to  encourage 
an  assumption  unduly  favorable  to  the  new  sovereign,  and  in  that 
of  the  latter,  to  suggest  the  imposition  of  an  unjust  or  excessive 
burden.  In  neither  case  has  it  reflected  closely  the  practice  of 
States. 

As  the  foregoing  discussion  has  indicated,  a  general  public  debt 
may  be  not  unreasonably  deemed  beneficial  rather  than  otherwise 
to  that  portion  of  the  national  domain  which  is  transferred  by 
cession  to  a  foreign  State.  Conversely,  a  public  local  debt  may 
be  distinctly  hostile  to  the  interests  of  the  territory  with  which 
it  is  supposedly  associated,  and  that  regardless  of  the  method  em- 
ployed to  fix  the  burden  of  payment. 

The  conscience  of  the  transferee  of  territory  cannot  be  affected 
by  fiscal  burdens  justly  deemed  harmful  thereto ;  and  whenever 
the  evidence  establishes  that  a  public  debt  is  of  such  a  character, 
there  is  no  solid  reason  for  the  assumption  of  the  burden  by  the 
new  sovereign.  If  the  evidence  shows  that  such  a  debt,  however 
general,  is  not  detrimental  to  the  interests  of  the  territory  trans- 
ferred, the  situation  is  otherwise,  and  the  transferee  cannot  evade 
the  obligation  without  violating  justice.  In  a  word,  the  under- 
lying reason  for  burdening  the  new  sovereign  with  any  portion  of 
the  fiscal  obligation  incurred  by  its  predecessor  depends  upon 
proof  of  the  benefits  which  have  accrued  to  the  territory  transferred 
in  consequence  of  the  debt. 

There  is  need  of  general  agreement  respecting  the  applica- 
tion of  this  fundamental  test.  There  is  required  some  under- 
standing, possibly  necessitating  the  formulation  of  rules  for 
special  guidance,  indicative  of  what  circumstances  should  be 
deemed  to  cause  a  debt  to  possess  a  character  hostile  to  the 
interests  of  territorj^  transferred,  and  what  also  should  be  re- 
garded as  certain  tokens  of  a  locally  beneficial  aspect.^  The 
advantages  derivable  from  an  adequate  response  to  this  require- 
ment, through  the  enhancement  of  the  credit  of  borrowing  States, 
and  the  safeguarding  of  the  equities  of  prospective  creditors, 
might  be  fully  commensurate  with  the  burden  entailed  by  such 
an  achievement. 

^  The  success  of  the  effort  to  formulate  any  rules  worthy  of  general  ac- 
ceptation would  seem  to  depend  upon  the  opportunity  offered  to  permit 
each  factor  in  a  particular  case  to  be  examined  with  reference  to  its  bearing 
upon  the  question  of  local  benefits.  If  there  remains  a  tendency  to  place,  for 
example,  all  so-called  local  debts  in  the  same  category,  or  to  test  the  obligation 
of  a  new  sovereign  by  the  presence  or  absence  of  a  single  circumstance  not 
itself  decisive  of  the  question  of  benefit,  confusion  of  thought  must  result  and 
grounds  of  disagreement  be  multiplied. 

218 


TOTAL  ABSORPTION  OF  A  STATE  [§  128 

(3) 

§  128.   Total  Absorption  of  a  State. 

Where  one  State  succeeds  to  territory  constituting  the  entire 
domain  of  another,  it  is  said  that  the  new  sovereign  succeeds  also 
to  the  general  fiscal  obligations  of  its  predecessor.'^  The  question 
arises,  however,  whether  the  liability  so  transferred  is  an  un- 
limited one.      Professor  Westlake  reached  the  conclusion  that 

If  the  territory  changing  masters  is  merged  for  revenue  pur- 
poses in  that  of  the  annexing  State  the  liability  of  the  latter 
will  be  unlimited,  but  if  it  is  maintained  as  a  separate  fiscal  unit, 
the  obligations  of  the  extinguished  State,  or  those  of  the  ceding 
State  connected  with  the  territory,  will  not  pass  over  beyond 
the  value  of  the  assets  received,  including  such  taxation  of  the 
territory  as  it  can  reasonably  bear  without  reference  to  the 
political  convenience  of  the  annexing  State. ^ 

The  soundness  of  this  distinction  may  be  tested  by  the  case  of 
the  Texan  bonds. 

The  independent  State  of  Texas  became  incorporated  into  the 
United  States  on  terms  providing  that  Texas  should  retain  all  the 

1  Hall,  Higgins'  7  ed.,  §  29;  A.  S.  Hershey,  in  Am.  J.,  Y,  285,  286.  Con- 
cerning the  terms  of  the  surrender  of  the  forces  of  the  South  African  Republic 
and  the  Orange  Free  State  to  the  commander  of  the  British  forces  in  1902, 
see  Westlake,  2  ed.,  I,  80-82. 

Hawaiian  Debt  :  By  a  joint  resolution  of  the  Congress  approved  July  7, 
1898,  it  was  declared  that  —  "The  public  debt  of  the  Republic  of  Hawaii, 
lawfully  existing  at  the  date  of  the  passage  of  this  joint  resolution,  including 
the  amounts  due  to  depositors  in  the  Hawaiian  Postal  Savings  Bank,  is  hereby 
assumed  by  the  Government  of  the  United  States,  but  the  liability  of  the 
United  States  in  this  regard  shall  in  no  case  exceed  S4, 000,000.  So  long, 
however,  as  the  existing  government  and  the  present  commercial  relations  of 
the  Hawaiian  Islands  are  continued  as  hereinbefore  provided,  said  govern- 
ment shall  continue  to  pay  the  interest  on  said  debt."  Senate  Doc.  231, 
56  Cong.,  2  Sess.,  p.  7,  1016.  According  to  a  report  of  the  Senate  Committee 
on  Foreign  Relations  on  May  14,  1900,  it  was  said:  "This  obligation  upon 
the  Hawaiian  government  [to  pay  interest]  ceases  when  the  government  of 
July  7,  1898,  is  superseded  by  the  government  provided  for  in  'An  act  to 
provide  a  government  for  the  Territory  of  Hawaii',  approved  April  30,  1900 
—  that  is  to  sav,  45  davs  after  the  approval  of  said  act,  to  wit,  June  15,  1900. 
See  Sec.  104  of  Act  of  Apr.  30,  1900.  The  interest  after  that  date  is  left  un- 
provided for,  and  should  be  assumed  by  the  United  States,  if,  indeed,  it  is  not 
assumed  by  fair  construction  of  the  act  of  Julv  7,  1898."     7c?.,  1018-1019. 

2  Int.  L.,  2  ed.,  I,  77.  The  Treaty  of  Brussels  of  Nov.  28,  1907,  providing 
for  the  cession  to  and  annexation  by  Belgium  of  the  Independent  State  of  the 
Congo,  declared  in  Art.  I  that  —  "The  Belgian  State  hereby  accepts  this 
cession,  takes  over  and  accepts  the  obligations  of  the  Independent  State  as 
set  forth  in  Schedule  A,  and  undertakes  to  respect  the  existing  interests  in  the 
Congo,  together  with  the  legally  acquired  rights  of  third  parties,  native  and 
non-native."     Am.  J.,  Ill,  Supp.,  74. 

See  For.  Rel.  1910,  677-685,  respecting  the  succe.ssion  by  Japan  to  the 
sovereignty  of  Korea  pursuant  to  the  treaty  of  Aug.  22,  1910. 

219 


§  128]     GENERAL   RIGHTS   OP   PROPERTY    AND    CONTROL 

vacant  and  unappropriated  lands  lying  within  its  limits,  which 
should  be  applied  to  the  payment  of  its  debts  and  liabilities ;  and 
the  residue  of  the  lands,  after  discharging  such  debts  and  liabil- 
ities, were  to  be  disposed  of  as  the  State  might  direct,  the  debts 
and  liabilities  of  the  State  in  no  event  to  become  a  charge  upon 
the  United  States.^  The  then  existing  itidebtedness  of  Texas  com- 
prised bonds  for  the  payment  of  which  the  former  Republic,  by 
appropriate  legislation  in  1836  and  1839,  had  pledged  its  national 
faith  and  its  revenues.^  Obviously  no  arrangement  between  the 
new  sovereign  and  the  old  could  affect  the  duty  of  the  United 
States  to  foreign  bondholders.  That  duty,  whatever  might  have 
been  its  scope,  was  fixed  by  the  law  of  nations.^  Legislation  in  the 
United  States  of  1850  and  1855,  was  an  attempt,  for  the  protec- 
tion of  bondholders,  to  shift  for  a  valuable  consideration,  from  the 
State  of  Texas  to  the  Union,  the  direct  burden  of  the  debt.^  The 
method  by  which  this  was  sought  to  be  accomplished  is  without 
international  significance.  The  American  commissioners  at  Paris 
were  justified  in  declaring  in  their  memorandum  of  October  27, 
1898, that : 

Texas  was  an  independent  State  which  yielded  up  its  inde- 
pendence to  the  United  States  and  became  a  part  of  the  Amer- 
ican Republic.  In  view  of  this  extinction  of  the  national  sov- 
ereignty, the  United  States  discharged  the  Texan  debt.^ 

1  5  Stat.  798;    Moore,  Dig.,  I,  455. 

2  Moore,  Arbitrations,  IV,  3591-3594. 

"Provision  was  also  made  by  an  act  of  January  22,  1839,  that  a  certain 
portion  of  the  sales  of  the  public  lands  should  be  annually  reserved  as  a  sink- 
ing fund  for  the  payment  of  the  debt  until  the  whole  should  be  paid."  Moore, 
Dig.,  I,  343. 

'  Westlake  2  ed.   I  79. 

'  Act  of  Sept.  9,' 1859,  9  Stat.  446,  Moore,  Dig.,  I,  344.  Concerning  the 
difficulty  in  carrying  this  law  into  effect,  see  Opinion  of  Mr.  Cushing,  Attor- 
ney-General, 6  Ops.  Attvs.-Gen.,  130.  Moore,  Dig.,  I,  344-346.  Cf.  Act  of 
Congress  of  Feb.  28,  1855,  10  Stat.  617-619;  Moore,  Arbitrations,  IV, 
3591-3594. 

The  failure  of  an  English  holder  of  a  Texan  bond  in  1854,  to  establish 
a  claim  against  the  United  States  before  the  mixed  commission  organized 
under  the  convention  of  February  8,  1853,  signified  little,  as  the  umpire  dis- 
missed the  claim  on  technical  grounds,  "it  being  for  transactions  with  the 
independent  Republic  of  Texas  prior  to  its  admission  as  a  State  of  the  United 
States."     Moore,  Arbitrations,  IV,  3591,  3594. 

5  Senate  Doc.  62,  55  Cong.,  3  Sess.,  Part  II,  96,  104;  Moore,  Dig.,  I,  367, 
372. 

Attorney-General  Griggs,  Sept.  20,  1899,  in  reply  to  an  inquiry  of  the  Secre- 
tary of  State  whether  certain  claims  against  Hawaii,  arising  prior  to  its  annexa- 
tion and  thereafter  presented  to  the  United  States,  were  claims  against  the 
United  States,  and  whether  they  should  be  referred  to  the  Court  of  Claims, 
expressed  opinion  to  the  effect  that  an  exception  to  the  general  doctrine  of 
international  law  imposing  upon  the  new  sovereign  the  debts  of  the  absorbed 

220 


TOTAL  ABSORPTION  OF  A  STATE  [§  128 

The  admission  of  Texas  into  the  Union  as  a  State  thereof,  sub- 
jected it  to  those  provisions  of  the  Constitution  enjoining  upon  a 
State  not  to  "  lay  any  imposts  or  duties  on  imports  or  exports,  ex- 
cept what  may  be  absolutely  necessary  for  executing  its  inspection 
laws."  ^  By  that  instrument  those  powers  were  conferred  on  the 
General  Government.^  Thus,  the  scope  of  the  duty  of  the  United 
States  to  foreign  creditors,  was  not  determined  by  the  "mere  ex- 
tinction of  the  national  sovereignty  of  Texas",  but  rather  by  im- 
pressing upon  that  State  a  character  which  absolutely  forbade  its 
maintenance  as  a  separate  fiscal  unit,  and  which  resulted  in  the 
merging  of  its  revenue  system  into  that  of  the  General  Govern- 
ment.    The  liability,  therefore,  of  the  new  sovereign,  could  not 

territory  exists  "where  the  Federal  idea  obtains."  He  said  in  part:  "Nor 
is  the  attribute  of  sovereignty  to  be  regarded  as  the  sole  test  throughout 
the  whole  situation  of  the  nature  of  the  relation  to  the  General  Government 
or  the  rest  of  the  world.  If  there  is  a  distinct  and  independent  civilized  gov- 
ernment, potent  and  capable  within  its  territorial  limits,  conducted  by  a 
separate  executive,  not  acting  as  the  mere  representative  by  appointment 
of  the  distant  central  administration,  I  perceive  no  reason  to  doubt  that  such 
government  rather  than  the  central  authority  should  respond  out  of  its  sepa- 
rate assets  to  any  valid  claims  upon  it,  whether  accruing  in  the  past,  presently 
accruing,  or  to  accrue  in  the  future.  .  .  .  And  the  dilemma  by  which, 
under  the  separated  governmental  entities,  the  Federal  authority  is  not  liable 
for  the  demand,  and  the  State  authority  has  no  international  relations  and 
therefore  escapes  a  perfect  obligation,  is  apparent  rather  than  real.  The 
historic  complaint  as  to  this  situation  is  not  in  reality  well  founded,  and  in 
the  forum  of  nations  the  just  liabilities  to  claimants  and  obligations  to  civil- 
ization of  a  State  of  this  Union  have  been  for  the  most  part  met  by  the  State 
or  recognized  by  the  United  States  in  its  sovereign  grace.  But  the  legal  lia- 
bility is  that  of  the  inferior  member  of  the  federation  rather  than  of  the  federa- 
tion itself.  ...  It  is  beyond  question  that  a  claim  on  foreign  behalf  against 
a  State  or  Territory  of  the  Union  would  be  presented  through,  rather  than 
to,  the  State  Department;  that  is,  it  would  be  presented  to  the  local  and 
not  to  the  Federal  Government,  and  would  be  finally  adjusted  and  recog- 
nized or  denied  by  the  former,  although  the  Federal  Government  is  the  in- 
ternational representative,  and  in  various  ways,  short  of  coercion  of  a  State  , 
—  as  unnecessary,  ordinarily,  as  it  is  impossible  —  admits  a  certain  inter- 
national liability."  22  Ops.  Attys.-Gen.,  583,  585,  586,  587,  given  in  part  in 
Moore,  Dig.,  I,  336-337. 

The  new  sovereign  may  require  the  territory  absorbed  to  satisfy  directly 
from  its  own  treasury  the  existing  debt,  or  to  reimburse  the  general  govern- 
ment of  that  sovereign  for  paying  it.  The  existence  and  exercise  of  such  a 
right  are  matters  of  domestic  law.  It  may  be  doubted,  however,  whether 
an  exception  to  the  general  international  liability  of  the  new  sovereign  to  a 
foreign  obligee  may  be  justly  founded  on  the  degree  of  freedom  from  control 
in  domestic  affairs  retained  by  the  governmental  authorities  of  the  country 
whose  territory  has  been  absorbed  by  the  new  sovereign,  even  in  a  case  where 
the  so-called  "federal  idea"  obtains.  Ultimate  responsibility  for  any  inter- 
national obligation,  fiscal  or  otherwise,  rests  upon  the  authority  capable  of 
dealing  with  the  outside  world.  When  a  State  becomes  extinct  through  its 
absorption  or  annexation  by  another,  such  capacity  is  necessarily  transferred 
to  the  new  sovereign.  With  it  alone  foreign  States  may  enter  into  negotia- 
tion. With  respect  to  them  it  is  alone  accountable  for  the  continued  per- 
formance of  any  obligation  undertaken  by  the  former  sovereign  and  which, 
according  to  international  law,  is  deemed  to  pass  to  its  successor. 
1  The  Constitution,  Art.  I,  Sec.  10.  ^  Id.,  Art.  I,  Sec.  8. 

221 


§  128]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

in  justice  be  limited  to  the  amount  of  duties  paid  in  Texan 
ports.^ 

It  may  be  urged  that  the  duty  of  the  new  sovereign  should  be 
measured  by  the  benefits  accruing  to  the  territory  concerned  in 
consequence  of  the  debt.  As  between  creditor  and  debtor  the 
scope  of  the  duty  of  the  latter  is  always  tested  by  the  extent  of 
the  detriment  sustained  by  the  former  in  lending  its  funds.  So 
long  as  the  debt  is  validly  contracted,  the  extent  of  the  benefits 
accruing  to  the  borrower,  whether  small  or  great,  are  of  no  con- 
cern, in  estimating  the  scope  of  the  duty  to  repay.  There  is  no 
deviation  from  this  principle  in  attempting  a  fair  apportionment  in 
the  case  where  the  territory  transferred  is  but  a  part  of  the  domain 
of  the  original  debtor.  The  reason  for  the  attempt  is  due  to  the 
equitableness  of  the  claim  that  territory  definitely  benefited  by  a 
loan  should  bear  its  portion  of  the  burden  of  payment  when  it  is 
separated  from  the  domain  of  the  sovereign  which  incurred  the  debt. 
Where  a  State  is  completely  absorbed  by  another,  no  question  of 
apportionment  can  arise.  There  is  no  need  of  an  endeavor  to  as- 
certain whether  portions  of  the  newly  acquired  domain  have  or 
have  not  gained  in  some  special  degree  from  the  use  of  the  funds  re- 
ceived. Hence  the  full  detriment  to  the  lender  or  creditor  as  duly 
manifested  by  the  terms  of  the  original  agreement  affords  the  basis 
of  estimating  the  extent  of  the  burden  passing  to  the  new  sovereign. 

Nevertheless,  there  may  be  circumstances  when  that  sovereign 
may  fairly  challenge  the  claim  that  it  is  burdened  with  the  obliga- 
tion assumed  by  its  predecessor.  Thus  the  former  might  contend 
that  a  debt  incurred  for  the  knowTi  and  actual  purpose  of  prevent- 
ing by  force  or  otherwise  the  transfer  of  the  entire  domain,  and  of 
which  in  spite  of  such  attempt  the  sovereignty  was  changed, 
should  be  regarded  as  voidable.  In  such  case  it  might  be  fairly 
contended  by  the  transferee  of  the  territory  that  the  creditor  as- 
sumed the  risk  that  the  design  for  which  the  debt  was  incurred 
would  be  achieved,  and  that  the  failure  thereof  was  a  contingency 
had  in  contemplation  when  the  loan  was  made.^ 

1  Dana's  Wheaton,  Sec.  30,  note  18 ;  Lawrence's  Wheaton  (ed.  1863), 
54,  note;  Scott's  Cases  on  Int.  L.,  95,  note. 

It  is  urged  with  force  that  where  a  State  absorbed  by  another  is  bankrupt, 
the  extent  of  the  fiscal  obligation  of  the  new  sovereign  should  be  limited  by 
the  actual  value  of  the  resources  acquired  through  the  transfer.  Coleman 
Phillipson,  Termination  of  War  and  Treaties  of  Peace,  322-323;  Arthur 
B.  Keith,  Theory  of  State  Succession,  60,  65. 

2  "Those  who  lend  money  to  a  State  during  a  war,  or  even  before  its  out- 
break when  it  is  notoriously  imminent,  may  be  considered  to  have  made 
themselves  voluntary  enemies  to  the  other  State,  and  can  no  more  expect 
consideration  on  the  failure  of  the  side  which  they  have  espoused  than  a 

222 


EXTINCTION  OF  PERSONALITY  OF  A  STATE     [§  129 

It  is  possible  for  a  State  validly  to  incur  a  debt  for  a  purpose 
which,  in  the  estimation  of  the  inhabitants  thereof,  is  essentially 
hostile  to  the  national  interests  although  unrelated  to  any  probable 
change  of  sovereignty.^  Upon  the  absorption  of  the  State  by 
another  there  is  difficulty  in  perceiving  the  ground  on  which  the 
new  sovereign  can  escape  the  burden  created  by  its  predecessor, 
unless  it  be  admitted  that  any  debt  incurred  without  the  consent 
or  against  the  will  of  the  inhabitants  of  the  debtor  State  may  fairly 
be  regarded  as  voidable  whenever  they  win  control  of  the  reins  of 
government.  Until,  however,  the  right  to  annul  a  public  debt  on 
such  a  ground  is  firmly  established,^  the  new  sovereign  would  not 
seem  to  possess  the  privilege  of  exercising  such  a  condition  sub- 
sequent, even  though  it  might  sincerely  profess  the  desire  to  re- 
spond fully  to  the  popular  will  expressed  within  the  territory  ac- 
quired. 

(4) 

§  129.   Extinction  of  the  Personality  of  a  State  by  its  Dis- 
integration. 

In  what  Hall  describes  as  "the  rare  case  of  a  State  so  splitting 
up  that  the  original  State  person  is  represented  by  no  one  of  the 
fractions  into  which  it    is  divided  'V  the  general  indebtedness 

neutral  ship  which  has  entered  the  enemy's  service  can  expect  to  avoid  con- 
demnation if  captured."  Westlake,  2  ed.,  I,  78,  quoted  in  Coleman  Phillip- 
son,  Termination  of  War  and  Treaties  of  Peace,  43.  See,  also,  opinion  of 
Lord  Alverstone,  C.  J.,  in  West  Rand  Central  Gold  Mining  Co.  v.  the  Eng 
(1905),  2  K.  B.  398;   ^m.  J.,  I,  217. 

1  Thus,  for  example,  a  monarchical  government  might  lawfuUj'  incur  a 
debt  for  the  purpose  of  raising  funds  to  assist  a  foreign  government  in  sup- 
pressing a  revolution,  and  that  directly  against  the  will  of  the  inhabitants 
of  the  territory  burdened  with  payment.  The  debt  might  be  fairly  regarded 
as  conferring  no  direct  benefit  whatever  upon  the  State  in  whose  name  it  was 
contracted.  Nevertheless,  the  law  of  that  State  might  be  such  as  to  impose 
no  prohibition  of  such  action  and  thus  fortify  the  claim  of  a  creditor  that  the 
transaction  was  not  invalid. 

2  It  is  not  intimated  that  the  law  of  nations  maj^  not  ultimately  demand 
that  the  validity  of  a  national  debt  should  depend  upon  some  recognized 
manifestation  of  popular  approval  on  the  part  of  and  within  the  domain  of 
the  debtor  State.  See,  however,  memorandum  of  the  American  Peace  Com- 
missioners at  Paris,  Oct.  27,  1898.  Senate  Doc.  62,  55  Cong.,  3  Sess.,  Part 
II,  96,  100,  Moore,  Dig.,  I,  367,  where  it  was  declared:  "The  American 
commissioners,  therefore,  are  not  required  to  maintain,  in  order  that  thej' 
may  be  consistent,  the  position  that  the  power  of  a  nation  to  contract  debts 
or  the  obligation  of  a  nation  to  pay  its  debts  depends  upon  the  more  or  less 
popular  form  of  its  government.  They  would  not  question  that  validity  of 
the  national  debt  of  Russia,  because,  as  the  Spanish  memorandum  states, 
an  autocratic  system  prevails  in  that  country." 

'  Higgins'  7  ed.,  p.  94,  note  1.  citing  with  approval  Halleck,  I,  97. 

A.  B.  Keith,  in  his  Theory  of  State  Succession,  99-100,  wliile  acknowledg- 
ing that  there  is  a  "remarkable  consensus  of  opinion"  favorable  to  the  proposi- 
tion that  there  is  a  division  of  the  debts  of  the  original  State,  declares  that  he 

223 


§  129]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

of  the  former  sovereign  is  said  to  be  divided  among  its  several 
successors.^  Even  though  the  situation  be  regarded  as  one  in 
which  the  personality  of  the  original  debtor  State  has  become  ex- 
tinct, it  may  be  doubted  whether  any  one  of  its  several  successors 
should  not  be  free  to  claim  that  it  should  be  unburdened  by  any 
portion  of  the  debt  shown  to  have  been  incurred  for  a  purpose  ad- 
verse to  its  interests.  Thus  where  a  debt  is  incurred  for  the  pur- 
pose of  suppressing  a  revolution  which  results  in  the  disintegration 
of  the  borrowing  State,  and  there  is  pledged  as  security  for  re- 
payment the  revenues  to  be  derived  from  a  particular  portion  of 
the  national  domain  constituting  the  territory  of  one  of  the  new 
States  so  brought  into  being,  it  is  not  conceived  that  the  change 
of  sovereignty  should  serve  to  transfer  also  the  debt.^ 

In  a  word,  the  extinction  of  the  state  life  of  the  original  obligor 
is  not  believed  to  deprive  any  of  its  successors  of  the  right  to  in- 
voke the  principle  that  the  duty  to  assume  a  portion  of  the  burden 
of  the  old  sovereign  depends  upon  the  existence  of  benefits  locally 
resulting  from  the  debt.  Perhaps,  however,  it  should  be  presumed 
that  normally  the  general  indebtedness  of  the  former  sovereign 
is  locally  beneficial,  and  hence  subject  to  apportionment.  Never- 
theless, the  new  sovereign  should  not  be  denied  the  right  to  rebut 
the  presumption. 

§  130.    The  Same. 

The  provisions  of  the  treaty  of  peace  concluded  between  the 
Principal  Allied  and  Associated  Powers  and  Austria,  September, 
1919,  are  significant.  According  to  Article  203,  each  of  the  States 
to  which  territory  of  the  former  Austro-Hungarian  Monarchy  w^as 
transferred,  and  each  of  the  States  arising  from  the  dismember- 
ment of  that  Monarchy,  including  Austria,  was  to  assume  re- 
sponsibility for  a  portion  of  the  debt  of  the  former  Austrian  Gov- 

has  been  "unable  to  discover  any  evidence  for  the  rule  except  in  the  case  of 
special  treaty  arrangements."  He  adds :  "There  is  no  recent  practice  to  show 
what  would  happen  if  a  State  broke  up  into  two  fragments,  both  not  repre- 
senting the  real  State.  I  am  inclined  to  think  that  neither  would  be  under 
any  legal  obligations  to  meet  the  debt  of  the  old  State." 

1  Declares  Oppenheim :  "When  a  State  breaks  up  into  fragments  which 
themselves  become  States  and  international  persons,  or  which  are  annexed 
by  surrounding  States,  it  becomes  extinct  as  an  international  person,  and  the 
same  rules  are  vaUd  as  regards  the  case  of  absorption  of  one  State  by  another." 
2  ed.,  I,  §  83. 

^  Here  again  the  creditor  may  be  said  to  have  assumed  the  risk  of  the  dis- 
integration of  the  debtor.  As  between  him  and  a  successor  to  the  rights  of 
sovereignty,  the  equities  are  not  with  one  who  knowingly  sought  to  profit 
by  the  attempt  to  prevent  the  very  coming  into  being  of  the  State  against 
which  the  claim  for  repayment  is  preferred. 

224 


THE   AUSTRIAN  TREATY  OF  PEACE  [§  130 

ernment  which  was  specifically  secured  on  railways,  salt  mines 
or  other  property,  and  which  was  in  existence  on  July  28,  1914. 
The  portion  to  be  so  assumed  by  each  State  was  to  be  such  por- 
tion as,  in  the  opinion  of  the  Reparation  Commission,  might  rep- 
resent the  secured  debt  in  respect  of  the  railways,  salt  mines 
and  other  properties  transferred  to  that  State  under  the  terms 
of  the  treaty  or  conventions  supplementary  to  it.^  Again,  each 
of  the  States  of  the  type  and  class  above  described,  including  Aus- 
tria, was  to  assume,  by  the  terms  of  the  same  Article,  respon- 
sibility for  a  portion  of  the  unsecured  bonded  debt  of  the  former 
Austrian  Government  which  was  in  existence  on  July  28,  1914, 
calculated  on  the  basis  of  the  ratio  between  the  average  for  the 
three  financial  years  1911,  1912,  1913,  of  such  revenues  of  the 
distributed  territory  and  the  average  for  the  same  years  of  such 
revenues  of  the  whole  of  the  former  Austrian  territories  as,  in  the 
judgment  of  the  Reparation  Commission,  should  be  best  calcu- 
lated to  represent  the  financial  capacity  of  the  respective  terri- 
tories. In  making  such  calculations,  the  revenues  of  Bosnia  and 
Herzegovina  were  not  to  be  included.^  It  was  also  provided  that 
the  Austrian  Government  should  be  solely  responsible  for  all  the 
liabilities  of  the  former  Austrian  Government  incurred  prior  to 
July  28,  1914,  other  than  those  evidenced  by  the  bonds,  bills, 

^  It  was  further  provided  that  the  amount  of  the  liability  in  respect  of  the 
secured  debt  so  assumed  by  each  State,  other  than  Austria,  should  be  valued 
by  the  Reparation  Commission,  on  such  basis  as  it  might  deem  equitable, 
and  that  the  value  so  ascertained  should  be  deducted  from  the  amount  pay- 
able by  the  State  in  question  to  Austria  in  respect  of  property  of  the  former 
or  existing  Austrian  Government  which  the  State  acquired  with  the  territory. 
Each  State  was  to  be  solely  responsible  in  respect  of  that  portion  of  the  se- 
cured debt  for  which  it  assumed  responsibility  under  the  terms  of  Article  203, 
and  the  holders  of  the  debt  for  which  responsibility  was  assumed  by  States 
other  than  Austria  were  to  have  no  recourse  against  the  Government  of  any 
other  State. 

It  was  declared  in  the  same  Article  that  "any  property  which  was  specif- 
ically pledged  to  secure  any  debt  referred  to  in  this  Article  shall  remain  specif- 
ically pledged  to  secure  the  new  debt.  But  in  case  the  property  so  pledged 
is  situated  as  the  result  of  the  present  treaty  in  more  than  one  State,  that 
portion  of  the  property  which  is  situated  in  a  particular  State  shall  consti- 
tute the  security  only  for  that  part  of  the  debt  which  is  apportioned  to  that 
State,  and  not  for  any  other  part  of  the  debt." 

It  was  added  that  for  the  purposes  of  the  Article  there  should  be  regarded 
as  secured  debt,  payments  due  by  the  former  Austrian  Government  in  con- 
nection with  the  purchase  of  railways  or  similar  property ;  and  it  was  pro- 
vided that  the  distribution  of  the  liability  for  such  paj^ments  should  be  de- 
termined by  the  Reparation  Commission  in  the  same  manner  as  in  the  case  of 
secured  debt.  Careful  provision  was  also  made  with  respect  to  the  currency 
in  which  debts  for  which  the  responsibility  was  transferred  should  be  payable, 
as  well  as  the  basis  of  rates  of  exchange. 

^  The  responsibilities  in  respect  of  bonded  debt  to  be  assumed  under  the 
terms  of  this  Article  were  to  be  discharged  according  to  the  terms  of  an  elab- 
orate annex  attached  thereto. 

VOL.  1  —  8  225 


§  130]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

securities  and  currency  notes  which  were  specifically  arranged 
for  under  the  terms  of  the  treaty.^ 

In  case  the  new  boundaries  of  any  State,  as  laid  down  by  the 
treaty,  should  divide  any  local  area  which  had  been  a  single  unit 
for  borrowing  purposes  and  which  had  had  a  legally  constituted 
public  debt,  it  was  agreed  that  such  debt  should  be  divided  between 
the  new  divisions  of  the  area  in  a  proportion  to  be  determined 
by  the  Reparation  Commission  in  accordance  with  the  principles 
previously  announced  for  the  reapportionment  of  government 
debts. ^  The  States  arising  from  the  dismemberment  of  the  Austro- 
Hungarian  INIonarchy,  with  the  exception  of  Austria,  were  to  be 
free  from  any  obligation  in  respect  of  the  war  debt  of  the  former 
Austrian  Government,  wherever  that  debt  might  be  held  ;  and 
neither  the  Governments  of  those  States  nor  their  nationals  were 
to  have  recourse  under  any  circumstances  against  any  other 
States  including  Austria  in  respect  of  the  war  debt  bonds  of  which 
they  or  their  nationals  might  be  the  beneficial  owners.^ 

The  foregoing  provisions  illustrate  the  mode  by  which  the 
Principal  Allied  and  Associated  Powers  dealt  with  the  public  debt 
of  the  Austro-Hungarian  Monarchy  which  in  spite  of  its  dismember- 
ment left  intact,  in  the  case  of  Austria,  a  State  which  kept  alive 
the  personality  of  one  of  the  States  embraced  in  the  Dual  Mon- 
archy. In  spite  of  the  disintegration  of  Austria-Hungary,  and 
of  the  transformation  of  the  Austrian  Empire  into  a  republican 
State  of  smaller  territorial  extent,  the  new  Republic  retained  a 

1  It  was  added  that  neither  the  provisions  of  the  Article  nor  those  of  the 
annex  attached  to  it  should  apply  to  securities  of  the  former  Austrian  Gov- 
ernment deposited  with  the  Austro-Hungarian  Bank  as  security  for  the  cur- 
rency notes  issued  by  it. 

2  See  Art.  204,  where  it  was  also  provided  that  the  pubUc  debt  of  Bosnia 
and  Herzegovina  should  be  regarded  as  the  debt  of  a  local  area  and  not  as  part 
of  the  public  debt  of  the  former  Austro-Hungarian  Monarchy. 

^  Art.  205,  where  it  was  added  that  the  war  debt  of  the  former  Austrian 
Government  which  was,  prior  to  the  signature  of  the  treaty,  in  the  beneficial 
ownership  of  nationals  or  governments  of  States  other  than  those  to  which 
territory  of  the  former  Austro-Hungarian  Monarchy  was  assigned,  was  to 
be  a  charge  upon  the  government  of  Austria  only.  It  was  declared,  how- 
ever, that  this  Article  was  not  to  apply  to  the  securities  of  the  former  Austrian 
Government  deposited  by  it  with  the  Austro-Hungarian  bank  as  security  for 
its  currency  notes.  It  was  declared  also  that  the  existing  Austrian  Gov- 
ernment should  be  solely  responsible  for  all  the  liabilities  of  the  former  Aus- 
trian Government  incurred  during  the  war,  other  than  those  evidenced  by 
the  bonds,  bills,  securities  and  currency  notes  which  were  specifically  pro- 
vided for  under  the  terms  of  the  treaty. 

See,  in  this  connection,  Letter  of  the  Allied  and  Associated  Powers,  Sept. 
2,  1919,  transmitting  to  the  Austrian  Delegation  the  treaty  of  peace  with  Aus- 
tria, together  with  the  reply  of  those  Powers  to  the  Austrian  note  of  July 
20,  1919,  requesting  certain  modifications  of  the  terms.  Treaty  of  Peace  with 
Austria,  Senate  Doc.  No.  121,  66  Cong.,  1  Sess.,  25-27. 

226 


EFFECT  ON  CONTRACTS  AND  CONCESSIONS      [§  131 

different  relation  to  its  predecessor  than  that  possessed  or  acquired 
by  the  other  States  arising  from  the  dismemberment  of  the  Austro- 
Hungarian  Monarchy. 


§  131.   Effect  on  Contracts  and  Concessions. 

No  problem  arises  concerning  the  effect  of  a  change  of  sover- 
eignty upon  contracts  or  concessions  alleged  to  have  been  con- 
cluded or  granted,  respectively,  if,  at  the  time  of  transfer,  no 
contractual  relationship  was  completed,  or  if  for  any  reason,  the 
arrangement  was  void.^ 

Doubtless  a  concessionaire  may  be  required  to  take  certain 
steps  to  establish  the  validity  of  a  concession  granted  by  a  former 
sovereign.  Non-compliance  may  be  regarded  as  amounting  to 
renunciation  of  any  claim  against  its  successor.  Such  a  require- 
ment does  not  involve  inquiry  into  the  legal  effect  of  the  change  of 
sovereignty.  Nor  is  it  at  variance  with  the  principle  on  which 
rests  the  duty  of  the  new  sovereign  to  respect  rights  previously 
granted.  The  purpose  is  merely  to  enable  that  sovereign  to  as- 
certain the  truth  as  to  the  foundation  of  the  claim  set  up  by  the 
concessionaire.^ 

1  Opinion  of  Mr.  Griggs,  Attorney-General,  July  27,  1899,  in  the  Matter 
of  the  Application  of  Ramon  Valdez  for  a  revocable  license  to  occupj^  and 
utilize  the  water  power  of  La  Plata  River,  Porto  Rico,  22  Ops.  Attys.-Gen., 
546 ;  also  Magoon's  Reports,  495  ;  Opinion  of  Mr.  Griggs,  Attornej- -General, 
July  28,  1899,  concerning  a  concession  for  the  construction  of  an  electric 
tramway  in  Porto  Rico,  22  Ops.  Attys.-Gen.,  551 ;  also  cases  in  Magoon's 
Reports,  448  and  630. 

"We  have  come  to  the  conclusion  that  the  cancellation  of  a  concession 
may  properly  be  advised  when  — 

"  (i)  The  grant  or  the  concession  was  not  within  the  legal  powers  of  the 
late  government ;   or, 

"  (ii)  Was  in  breach  of  a  treaty  with  the  annexing  State  ;  or, 

"  (m)  When  the  person  seeking  to  maintain  the  concession  acquired  it 
unlawfully  or  by  fraud  ;   or, 

"  {iv)  Has  failed  to  fulfill  its  essential  conditions  without  lawful  excuse. 

"In  any  cnsp  falling  within  these  categories,  where  there  has  either  been 
no  'duly  acquired  right,  or  there  has  been  a  non-fulfillment  of  essential  condi- 
tions by  the  concessionaire,  cancellation  or  modification  without  compensa- 
tion, appears  to  us,  in  the  absence  of  special  circumstances  to  be  justifiable." 
Report  of  Transvaal  Concession  Commission,  Apr.  19,  1901,  Blue  Book, 
South  Africa,  June,  1901  [Cd.  623],  6-8,  Moore,  Dig.,  I.  411,  413. 

^  In  the  case  of  Botiller  v.  Dominguez,  the  t'nitcd  States  Supreme  Court, 
in  sustaining  an  Act  of  Congress  requiring  presentation  for  confirmation 
to  a  board  of  land  commissioners  of  grants  in  California  completed  by  the 
former  sovereign  of  that  country,  declared  :  "Nor  can  it  bo  said  that  there  is 
anything  unjust  or  oppressive  in  requiring  the  owner  of  a  valid  claim,  in  that 
vast  wilderness  of  lands  unclaimed,  and  unjustly  claimed,  to  present  his  de- 
mand to  a  tribunal  possessing  all  the  elements  of  judicial  functions,  with  a 
guarantee  of  judicial  proceedings,  so  that  his  title  could  be  established  if  it 
was  found  to  be  valid,  or  rejected  if  it  was  invalid.  .  .  .  Every  person 
owning  land  or  other  property  is  at  all  times  liable  to  be  called  into  a  court 

227 


§  131]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

It  may  be  doubted  whether  a  change  of  sovereignty  necessarily 
serves  to  terminate  a  contract  or  concession  granted  by  a  former 
sovereign.^  That  change  may,  however,  cause  the  substitution  of 
the  new  sovereign  for  the  old  as  a  party  to  the  agreement.  Such 
a  result  seems  to  follow  when  the  entire  domain  of  one  State  is 
transferred  to  another  and  the  former  becomes  extinct. 

When  there  is  a  transfer  of  a  part  of  the  territory  of  a  State 
which  retains  its  life  as  such,  the  succession  of  the  transferee  to 
the  contracts  of  the  transferor  depends  upon  their  special  relation 
to  the  territory  of  which  the  sovereignty  has  undergone  a  change. 
If  the  exercise  of  the  entire  privileges  of  a  concession  requires  the 
commission  of  acts  wholly  within  that  territory,  such  as  the  con- 
struction of  permanent  improvements  or  the  operation  of  public 
utilities  therein,  the  contract  would  appear  to  be  one  contemplat- 
ing such  a  substitution  in  the  event  of  a  change  of  sovereignty.^ 
There  w^ould  be  difficulty,  moreover,  in  reaching  a  different  con- 
clusion even  though  the  undertakings  of  the  original  grantor  de- 
manded the  performance  on  its  part  of  executory  acts  in  the  shape 
of  payments  from  its  general  funds  rather  than  from  those  of  the 
territory  immediately  concerned  and  subsequently  transferred. 
It  is  believed  that  the  connection  of  the  concession  in  the  light 

of  justice  to  contest  his  title  to  it.  This  may  be  done  by  another  individual, 
or  by  the  government  under  which  he  hves.  It  is  a  necessary-  part  of  a  free 
government,  in  which  all  are  equally  subject  to  the  laws,  that  whosoever 
asserts  rights  or  exercises  powers  over  property  may  be  called  before  the 
proper  tribunals  to  sustain  them."     130  U.  S.  238,  250. 

See,  also.  United  States  v.  Clarke,  8  Pet.  436 ;  Glenn  v.  United  States,  13 
How.  250 ;  Ainsa  v.  New  Mexico  &  Arizona  Railroad  Co.,  175  U.  S.  76  ;  Florida 
V.  Furman,  180  U.  S.  402 ;  Barker  v.  Harvey,  181  U.  S.  481 ;  Mr.  Root,  Secy. 
of  War,  to  Maj.  Gen.  Wood,  Military  Governor  of  Cuba,  June  21,  1901, 
Magoon's  Reports,  602,  603 ;   Moore,  Dig.,  I,  392-394. 

Compare  position  of  Mr.  Sherman,  Secy,  of  State,  in  1897,  with  respect 
to  the  orders  of  the  French  Government  for  the  establishment  of  the  validity 
of  concessions  in  Madagascar  granted  prior  to  the  acquisition  of  that  country 
by  France.     For  Rel.  1897,  154-157,  Moore,  Dig.,  I,  387-389. 

1  "Concessions  of  the  nature  of  those  which  were  the  subject  of  oiu"  enquiry 
presented  examples  of  mixed  public  and  private  rights :  They  probably 
continue  to  exist  after  annexation  until  abrogated  by  the  annexing  State, 
and  as  matter  of  practice  in  modern  times,  where  treaties  have  been  made  on 
the  cession  of  territory,  have  been  often  maintained  by  agreement."  Re- 
port of  Transvaal  Concession  Commission,  Apr.  19,  1901,  Blue  Book,  South 
Africa,  June,  1901  [Cd.  623],  6-8,  Moore,  Dig.,  I,  411,  412.  See  generally 
G.  Gidel,  Des  effets  de  Vannexion  sur  les  concessions,  Paris,  1904. 

^  Cases  may  arise  where  the  concessionaire  is  required  to  perform  acts  in 
territory  of  the  grantor  retained  by  itself,  as  well  as  in  that  which  is  trans- 
ferred. These  acts  may  involve  the  construction  or  operation  of  industrial 
plants  and  public  utilities  in  both.  In  such  a  situation  the  problem  arises 
whether  the  contract  should  be  deemed  to  be  divisible  so  as  to  justify  the 
substitution  of  the  new  sovereign  with  respect  to  mutual  undertakings  con- 
cerning solely  the  territory  transferred.  This  question  is  distinct  from  that 
relating  to  the  effect  of  substitution  when  it  is  admitted  to  take  place. 

228 


EFFECT  ON  CONTRACTS  AND  CONCESSIONS     [§  131 

of  its  location  and  operation  and  design,  with  the  territory  trans- 
ferred, should,  rather  than  any  other  circumstance,  be  the  test  of 
substitution.^    Doubtless  the  contractual  obligations  of  the  former 

1  The  relation  of  the  United  States,  upon  the  acquisition  of  the  Phihppine 
Islands,  to  a  contract  previously  concluded  between  the  Spanish  Government 
and  the  Manila  Railway  Co.  (Ltd).,  a  British  corporation,  and  providing  for 
the  construction  and  operation  of  a  railway  in  the  Island  of  Luzon,  became 
the  subject  of  an  opinion  by  Mr.  Grigp;s,  Atty.-Gen.,  July  26,  1900.  See 
23  Ops.  Attys.-Gen.,  181,  Moore,  Dig.,  I,  395  ;  also  Opinion  of  "^Mr.  Knox,  Atty.- 
Gen.,  23  Ops.  Attys.-Gen.,  451.  The  Spanish  Government  had  granted  to  the 
corporation  a  concession  for  99  years,  and  had  guaranteed  8  per  cent,  per 
annum  on  the  total  investment  made,  payable  in  quarterly  installments.  The 
entire  sum  guaranteed  was  to  be  paid  from  the  Philippine  treasury,  two  thirds 
of  which,  according  to  the  understanding  of  the  Attorney-General,  were  to 
be  paid  wholly  from  moneys  belonging  to  the  local  funds  of  the  Philippines 
and  one  tliird  from  the  roj^al  or  peninsular  funds  of  Spain  in  the  Philippine 
treasury,  as  a  subsidy  recognized  by  the  general  policy  of  Spain  as  chargeable 
to  itself.  Upon  the  cession  of  the  islands  to  the  United  States  the  company 
demanded  of  it  payment  of  the  quarterly  installments  of  the  guaranty,  be- 
ginning with  that  due  Mar.  1,  1899.  The  Attorney-General  was  of  opinion 
"that  an  identical  contract  beween  the  United  States  and  the  company 
was  not  created  by  the  ratification  of  the  treaty  of  Paris",  and  did  not  then 
exist,  for  the  following  reasons :  (a)  that  the  agreement  was  the  personal  and 
indivisible  contract  of  Spain  and  the  concessionaire ;  (6)  that  it  was  of  an 
executory  character,  "not  concerning  the  public  domain  owned  by  Spain, 
but  containing  many  personal  obligations  of  Spain  and  of  other  parties"; 
(c)  that  it  was  entered  into,  not  for  the  exclusive  local  benefit  of  the  Island 
of  Luzon,  but  also  to  enable  the  Spanish  Government  "to  govern  more  easily 
and  conveniently  the  subject  colonies,  for  the  general  benefit  of  Spain  as  well 
as  their  own."  The  Attorney-General  declared,  however,  that  as  the  Prov- 
inces of  the  Philippines  had  retained  and  would  continue  to  retain  the  chief 
benefits  of  the  railway,  and  as  the  local  revenues  out  of  which  the  guaranty 
was  to  be  paid  were  in  the  hands  of  the  Philippine  Government,  and  as  the 
road  was  a  most  necessary  piece  of  property,  two  thirds  of  which  were  bought, 
as  it  were,  by  a  guardian  for  the  use  of  his  ward,  the  price  to  be  paid  as  to 
two  thirds  from  the  funds  of  the  ward,  there  was  a  "  general  equitable  obliga- 
tion" upon  the  Philippine  Provinces  to  make  some  fair  arrangement  with  the 
company  as  to  the  two  thirds  benefit.  He  declared  that  they  could  not  justly 
take  advantage  of  the  disappearance  of  Spain  to  retain  what  she  had  procured 
for  them  on  the  credit  of  their  funds,  and  deny  all  liability  for  the  price. 

The  law  officer,  Division  of  Insular  Affairs,  War  Department,  was  of  opinion 
that  the  United  States  was  not,  in  the  absence  of  any  stipulation  in  the  treaty 
of  peace,  bound  by  the  contract,  because  he  regarded  it  as  the  personal  ob- 
ligation of  Spain,  and  one  which  had  not  been  made  a  lien  upon  the  revenues 
of  the  Island  of  Luzon.     Magoon's  Reports,  177. 

The  argument  of  the  Attorney-General  that  because  the  railway  was  bene- 
ficial to  Spain  as  an  instrument  for  the  retention  of  military  control  over  the 
Philippines  and  not  of  exclusive  benefit  to  the  country  traversed,  there  was 
reason  to  deny  an  obligation  on  the  part  of  a  new  sovereign  to  accept  the 
burden  of  its  predecessor,  is  not  convincing.  The  implication  that  a  possible 
use  of  the  line  for  a  purpose  deemed  adverse  to  local  interests  made  the  rail- 
way a  detriment  rather  than  a  benefit  is  not  satisfactory.  Nor  is  the  circum- 
stance that  the  concession  possessed  an  executory  character  calling  for  the 
performance  of  acts  by  the  grantor,  believed  to  have  been  decisive  of  the  ques- 
tion of  substitution.  It  is  difficult  to  accept  the  suggestion  that  the  con- 
tract was  one  designed  to  impose  upon  the  grantor  any  fiscal  obligations  in 
case  of  loss  of  sovereignty  over  the  territory  within  which  the  railway  was  to 
be  operated.  An  undertaking  so  obviously  adverse  to  its  own  interests  is  one 
which  it  would  hardly  be  reasonable  to  impute  to  Spain  a  willingness  or  pur- 
pose to  have  assumed. 

229 


§  131]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

sovereign  towards  pri^'ate  parties  within  and  especially  associated 
with  a  particular  portion  of  its  domain  may  obviously  be  of  a 
character  such  as  to  survive  a  change  of  sovereignty.  This  is 
true  when,  for  example,  a  State  becomes  the  trustee  of  funds 
for  the  benefit  of  religious  or  philanthropic  work  conducted  by  a 
particular  organization  within  the  bounds  of  territor}-  ceded  to  a 
foreign  State. ^ 

When  in  consequence  of  a  transfer  the  new  sovereign  is  deemed 
to  be  substituted  for  the  old,  the  problem  presents  itself  respecting 
the  terms  on  which  the  transferee  may  reasonably  terminate  the 
contract.  The  precise  question  is  whether  the  new  sovereign 
stands  in  this  respect  on  a  better  footing  than  its  predecessor. 

The  acceptance  of  the  burden  of  an  existing  contract  or  conces- 
sion implies  that  the  exercise  of  any  right  to  terminate  the  agree- 
ment is  fettered  with  a  corresponding  obligation  to  make  full  re- 
sponse to  every  equitable  demand  of  the  other  contracting  party. 
The  measure  of  its  loss  due  to  the  act  of  termination,  whether  or 
not  to  be  deemed  a  breach  of  contract,  w^ould  seem  to  require 
judicial  or  other  impartial  scrutiny  and  fair  estimation.^  The 
very  scope  of  such  a  burden  must  raise  doubt  as  to  whether  the 
transferees  of  territory  have  acknowledged  a  duty  so  to  respect 
generally  even  those  contracts  and  concessions  which  have  been 
peculiarly  associated  with  the  newly  acquired  domain.  Instances 
where  the  new  sovereign  has  regarded  itself  free  to  terminate  at 
will  and  on  its  own  terms  certain  classes  of  concessions  have  their 
significance ;    and  they  raise  the  question  whether  there  is  to  be 

1  In  the  so-called  Pious  Fund  Case  between  the  United  States  and  Mexico, 
the  arbitral  award  of  Sir  Edward  Thornton  as  umpire,  Nov.  11,  1875,  was 
based  upon  the  theory  that  the  Mexican  Government  being  the  successor 
to  a  trust  fund  for  the  maintenance  of  Roman  Catholic  missions  in  the  Cali- 
fornias  was  obliged,  upon  the  cession  of  Upper  California  to  the  United  States, 
to  pay  an  equitable  portion  of  the  proceeds  of  the  fund  to  the  Bishop  of  Upper 
California,  the  successor  within  American  territory  to  the  previous  bene- 
ficiary. See  J.  B.  Scott,  Hague  Court  Reports,  48-53 ;  Moore,  Arbitrations, 
II,  1348-1352.  In  the  arbitration  of  the  Pious  Fund  Case  before  a  Court  of 
Arbitration  assembled  at  the  Hague  under  the  Convention  of  1899,  and 
pursuant  to  a  protocol  of  May  22,  1902,  counsel  for  the  United  States  relied 
upon  the  same  principle.  See  Replication  of  the  United  States,  12-13 ;  also 
supplemental  brief  in  behalf  of  the  United  States,  by  G.  W.  McEnerney, 
33-34.  The  award  of  the  Tribunal  did  not  touch  upon  this  point,  inasmuch 
as  the  application  of  the  principle  of  res  adjudicata  sufficed  for  the  grounds 
of  the  decision.  For  the  text  of  the  award  cf.  J.  B.  Scott,  Hague  Court  Re- 
ports, 3. 

2  In  the  estimation  of  damages  the  difficult  question  as  to  prospective 
losses  may  present  itself.  This  gives  rise  to  inquiry  respecting  the  correct 
test  to  be  applied  in  measuring  the  damages  arising  from  a  breach  of  con- 
tract, the  sufficiency  of  evidence  in  support  of  an  alleged  loss,  as  well  as  the 
interpretation  of  the  agreement. 

230 


EFFECT  ON  CONTRACTS  AND  CONCESSIONS      [§  131 

found  in  practice  or  theory  a  reasonable  and  just  basis  for  such 
freedom  of  action.^ 

Numerous  conventions  concluded  within  the  one  hundred  and 
twenty-five  years  prior  to  The  World  War  have  announced  the 
acceptance  by  the  transferee  of  concessions  and  contracts  granted 
or  undertaken  by  the  transferor.^  These  instances  have  recorded 
a  trend  of  practice  distinctly  favorable  to  the  contention  that  a 
sense  of  obligation  has  induced  such  action.  Probably  the  reason 
impelling  even  a  conqueror  so  to  burden  itself  in  a  treaty  of  peace 
has  been  the  belief  that  the  public  interests  of  the  territory  trans- 
ferred would  be  thereby  benefited  rather  than  harmed,  and  that 
rights  analogous  to  those  of  private  property  would  likewise  be 
respected.^     There  does  not,  however,  appear  to  have  been  habitual 

*  One  aspect  of  American  procedure  mav  here  be  observed.  In  constru- 
ing the  relevant  Acts  of  Congress  (the  Act  of  Mar.  3,  1887,  Ch.  359;  24  Stat. 
505),  the  Supreme  Court  of  the  United  States  has  declared  that  the  Court  of 
Claims  is  without  jurisdiction  in  cases  where  the  liability  of  the  United  States 
on  a  contract  entered  into  by  its  predecessor  as  sovereign  over  territory  trans- 
ferred is  asserted  by  a  claimant  as  a  result  of  an  express  provision  of  an  as- 
sumption contained  in  a  treaty,  or  is  sought  to  be  enforced  as  a  necessary 
consequence  of  the  cession  made  by  a  treaty.  The  latter  tribunal  is  deemed, 
however,  to  possess  jurisdiction  of  claims  based  on  contracts  originally  made 
with  the  former  sovereign  of  the  ceded  territory,  and  assumed  by  the  United 
States  after  the  transfer,  either  expressly  or  by  implication.  Eastern  Exten- 
sion, Australasia  and  China  Telegraph  Co.,  Ltd.  v.  United  States,  231  U.  S. 
326,  reversing  48  Ct.  Cls.  33.  Declared  Mr.  Justice  Hughes  in  the  course  of 
the  unanimous  opinion  of  the  court :  "But,  if  the  claim  of  the  appellant  were 
deemed  to  rest  exclusively  upon  the  transfer  of  sovereignty,  upon  the  theory 
that  thereby  under  the  principles  of  international  law  an  obligation  in  its 
favor  was  imposed  upon  the  United  States,  the  claim  would  still,  in  our  judg- 
ment, be  excluded  by  the  statute  from  the  consideration  of  the  court  below." 
(333.) 

In  the  course  of  the  opinion  of  the  lower  court  it  was  declared  by  Chief 
Justice  Peelle  that  "when  the  United  States  succeeded  to  the  sovereignty  of 
Spain  over  the  [Philippine]  islands  they  were  under  no  more  obligation  to 
continue  the  contracts  for  public  or  private  service  of  individuals  or  corpora- 
tions than  they  were  to  continue  in  office  officials  appointed  by  the  Spanish 
Government."  48  Ct.  CI.  33,  45.  Inasmuch  as  that  tribunal  lacked  and  did 
not  seek  to  exercise  jurisdiction  to  adjudicate  on  the  question  as  to  the  effect 
of  the  change  of  sovereignty  produced  by  the  treaty  of  cession,  the  language 
quoted  may  be  regarded  as  merely  a  dictum. 

See  also  Eastern  Extension,  Australasia  &  China  Telegraph  Company, 
Ltd.  V.  United  States,  251  U.  S.  355,  362. 

Concerning  the  inability  of  a  British  court  to  determine  the  effect  of  an- 
nexation of  territory  by  Great  Britain  upon  concessions  granted  by  the  prior 
sovereign,  see  Cook  v.  Sprigg  (1899),  A.  C.  572;    Moore,  Dig.,  I,  4i0. 

^  See  group  of  treaties  from  that'of  Campo  Formio  of  October,  1797.  to 
that  of  Constantinople  of  Sept.  16  (29),  1913,  contained  in  Coleman  Phillip- 
son,  Termination  of  War  and  Treaties  of  Peace,  326-330;  also  collection  in 
Moore,  Dig.,  I,  385-387.  Also  see  discussion  in  A.  B.  Keith,  Theory  of  State 
Succession,  66-72;  A.  S.  Hershey,  in  Am.  J.,  V,  285,  294-296;  E.  M.  Bor- 
chard.  Diplomatic  Protection,  §  83 ;  West  Rand  Central  Gold  Mining  Co. 
V.  the  King  (1905),  2  K.  B.  391;   Am.  J.,  I,  217. 

'  After  the  Spanish-American  War  in  1898,  the  American  peace  commis- 
sioners at  Paris  rejected  certain  Articles  tendered  by  the  Spanish  commis- 

231 


§  131]     GENERAL   RIGHTS   OF  PROPERTY   AND   CONTROL 

recognition  by  treaty  or  otherwise  of  any  duty  to  accept  and  main- 
tain contractual  obligations  regarded  by  the  new  sovereign  as 
certainly  detrimental  to  the  territory  transferred.  Practice  has 
thus  indicated  soundly  although  roughly  the  basis  of  a  useful 
distinction.  Without  attempting  classification  of  the  situations 
in  which  a  contract  has  been  regarded  as  locally  detrimental,  at- 
tention is  called  to  the  significance  of  various  pleas  by  which  a 
new  sovereign  may  urge  that  an  agreement  possesses  such  a 
character.^ 

sioners  in  respect  to  contracts  entered  into  for  public  works  and  services.  They 
did  so  for  the  reason  that  the  "extent  and  binding  obHgation  of  these  con- 
tracts are  unknown",  at  the  same  time  disclaiming  any  purpose  of  the  Gov- 
ernment "to  ilipregard  the  obligations  of  international  law  in  respect  to  such 
contracts  as  investigation  may  ^how  to  be  valid  and  binding  upon  the  United 
States  as  successor  in  sovereignty  in  the  ceded  territory."  Senate  Doc.  62, 
55  Cong.,  3  Sesi.,  Fart  II,  240,  241,  262,  Moore,  Dig.,  I,  389-390.   , 

The  treaty  of  peace  with  Germany  of  June  28,  1919,  sheds  httle  light  on 
the  solution  of  the  general  problem,  doubtless  because  of  the  circurnstance 
that  contracts  and  concessions  granted  by  German  authority  within  and 
with  respect  to  territory  ceded  by  Germany,  were  almost  entirely  held  by 
nationals  of  Germany,  or  possibly  by  those  of  its  allies  in  the  war.  Thus  the 
provisions  of  that  treaty  permitting  the  Allied  and  Associated  Powers  to  retain 
and  liquidate  the  interests,  rights  and  properties  of  German  nationals  within 
territories  detached  by  cession,  served  to  place  those  powers  in  the  position  of 
obligees  as  well  as  obligors,  according  to  their  election.  Art.  297  (b) ;  also 
Section  2  of  Annex  following  Art.  303.  It  may  be  observed  that  Germany 
also,  by  Art.  258,  renounced  all  rights  of  its  own  or  its  nationals  by  virtue 
of  any  agreement,  to  representation  upon  or  participation  in  the  control  or 
administration  of  commissions.  State  banks,  agencies  or  other  financial  or 
economic  organizations  of  an  international  character,  exercising  powers  of 
control  or  administration,  and  operating  in  any  of  the  States  of  its  enemies 
or  in  Austria,  Hungary,  Bulgaria  or  Turkey,  or  in  the  dependencies  of  those 
States,  or  in  the  former  Russian  Empire.  Moreover,  by  Art.  260,  Germany 
undertook,  upon  the  demand  of  the  Reparation  Commission,  to  possess  itself 
of  any  rights  and  interests  of  German  nationals  in  any  public  utility  under- 
taking or  in  any  concession  operating  in  Russia,  China,  Turkey,  Austria, 
Hungary  and  Bulgaria,  or  in  the  possessions  or  dependencies  of  those  States 
or  in  any  territory  formerly  belonging  to  Germany  or  its  allies  to  be  ceded 
by  it  or  them  to  any  Power,  or  to  be  administered  by  a  Mandatory  under 
the  Treaty,  and  within  six  months  of  such  demand  to  transfer  such  rights  and 
interests  to  the  Reparation  Commission.  Provision  was  also  made  in  the  same 
Article  for  German  indemnification  of  German  nationals  thus  dispossessed, 
and  for  crediting  Germany  on  account  of  sums  due  by  it  for  reparation  with 
the  value  of  what  might  be  transferred  to  the  Commission.  See  also  Arts.  211 
and  212  of  the  treaty  of  peace  with  Austria,  of  Sept.  10,  1919. 

1  Numerous  treaties  of  the  nineteenth  gentury  containing  provision  for  the 
maintenance  of  contracts  and  concessions  of  the  old  sovereign  have  made  cleai 
the  design  to  confine  the  obligation  of  the  transferee  to  bear  burdens  deemed 
iDeneficial  to  the  territory  concerned,  by  referring  to  the  arrangements  to  be 
respected  as  those  contracted  for  the  "public  interests"  of  what  was  ceded. 
See,  for  example,  Art.  VIII  of  the  Treaty  of  Zurich  of  Nov.  10,  1859,  Brit,  and 
For.  State  Pap.,  XLIX,  366  ;  Moore,  Dig.,  I,  385.  The  numerous  provisions 
for  the  maintenance  of  contracts  relating  to  railroads  seem  to  confirm  the 
opinion  that  the  construction  and  operation  thereof  is  not  to  be  regarded  as 
other  than  beneficial  to  the  territory  which  they  traverse.  Cf.,  for  example, 
Art.  XVI,  treaty  between  Turkev  and  Bulgaria  Sept.  16  (29),  1913.  Am.  J., 
VIII,  Supp.  27.  35 ;  Coleman  PhiUipson,  Termination  of  War  and  Treaties  of 
Peace,  440,  445. 

232 


EFFECT  ON  CONTRACTS  AND  CONCESSIONS      [§  131 

A  contract  or  concession  may  be  deemed  adverse  to  the  territory 
transferred  because  of  the  purposes  of  the  undertaking,  or  by 
reason  of  the  terms  of  the  agreement,  or  on  account  of  the  method 
by  which  performance  is  contemplated.  On  any  one  of  these 
grounds  the  new  sovereign  may  differ  from  the  opinion  entertained 
by  its  predecessor  in  a  given  case.  The  reasonableness  of  such  a 
difference  may  not,  however,  suffice  to  indicate  the  existence  or 
scope  of  the  duty  to  be  imposed  upon  the  transferee.^  If  the  detri- 
ment to  the  territory  concerned  is  to  permit  the  transferee  as  a 
successor  to  the  contract  to  enjoy  complete  freedom  of  action 
in  the  matter  of  cancellation,  it  must  be  due  to  the  fact  that  the 
very  nature  of  the  agreement  is  such  as  to  forbid  the  conclusion 
that  it  could  be  reasonably  deemed  beneficial  if  a  change  of  sover- 
eignty took  place.  The  detrimental  aspect  of  the  contract  must 
be  an  obvious  and  certain  result  of  the  change  of  sovereignty.  In 
such  case  it  is  not  unjust  to  charge  the  concessionaire  with  an- 
ticipation of  the  character  which  his  concession  would  necessarily 
assume  upon  a  transfer  of  the  territory,  and,  therefore,  with 
contemplation  of  the  natural  and  logical  attitude  of  any  transferee. 
On  the  other  hand,  if  the  detriment  to  the  territory  is  one  attribut- 
able solely  to  the  special  public  policy  of  the  particular  transferee, 
in  contrast  to  that  of  the  transferor,  rather  than  to  the  failure  of 
the  latter  to  retain  its  sovereignty  or  to  a  circumstance  indissolubly 
connected  with  the  change  thereof,  the  situation  is  otherwise. 

The  application  of  the  foregoing  distinction  is  easily  illustrated. 
A  contract  the  object  of  which  is  to  frustrate  or  impede  the  attempt 
by  force  or  otherwise  to  effect  the  change  of  sovereignty  which 
actually  results,  is  one  which  must  be  regarded  as  hostile  to  the 
territory  transferred  as  soon  as  that  change  takes  place.  Doubt- 
less other  classes  of  agreements  may  be  fairly  placed  in  the  same 
category. 

A  concession  for  a  purpose  distinctly  beneficial  to  the  territory 
transferred  may  have  been  la'W'fully  granted  on  terms  which  in  the 
judgment  of  the  new  sovereign  appear  to  have  been  unduly  advan- 
tageous to  the  concessionaire  and  correspondingly  burdensome  to 

1  "  In  this  last  case,  however  [respecting  the  cancellation  or  modification  of 
a  concession  deemed  injurious  to  the  public  interest],  the  question  of  compen- 
sation arises,  inasmuch  as  it  would  be  inequitable  that  a  concessionaire  should 
lose  without  compensation  a  right  duly  acquired,  and  whose  conditions  he 
had  duly  fulfilled,  because  the  new  government  differed  from  the  old  in  its  view 
as  to  what  was,  or  was  not,  injurious  to  public  interest,  even  though  the  opinion 
of  the  new  government  were  obviously  the  true  one."  Report  of  Transvaal 
Concession  Commission,  Apr.  19,  190i,  Blue  Book,  South  Africa,  June,  1901 
[Cd.  623],  6-8,  Moore,  Dig.,  I,  411,  413. 

233 


§  131]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

the  grantor.  This  circumstance  may  encourage  the  attempt  to 
modify  or  cancel  the  arrangement.  In  such  case  it  may  be  urged 
that  the  new  sovereign  ought  not  to  be  obliged  to  stand  by  the 
bad  bargain  of  its  predecessor.  It  is  believed,  however,  that  if 
the  good  faith  of  the  concessionaire  was  beyond  question,  and  the 
terms  of  the  contract  not  such  as  to  indicate  the  perpetration  of 
fraud,  any  termination  of  the  agreement  should  still  make  pro- 
vision for  the  existing  equities  of  the  concessionaire.  Again,  a 
concession  for  a  reasonable  purpose  may  have  assumed  the  form  of 
a  monopoly  which  in  the  estimation  of  the  new  sovereign  is  essen- 
tially adverse  to  the  economic  interests  of  the  territory  concerned. 
In  such  case  the  divergence  of  opinion  as  to  the  propriety  of  the 
means  of  accomplishing  what  the  concession  was  designed  to 
achieve,  ought  not  to  justify  cancellation  save  on  terms  responsive 
to  the  equities  of  the  concessionaire.^  Doubtless  in  every  case 
the  reality  and  extent  of  those  equities  should  be  judged  by  the 
actual  or  constructive  knowledge  of  the  concessionaire  at  the 
time  when  he  acquired  the  concession,  with  respect  to  the  precari- 
ousness  of  his  venture  if  a  change  of  sovereignty  should  occur.^ 
In  the  formulation  of  any  general  scheme  indicative  of  a  mode 

'  Declared  Mr.  Griggs,  Attorney-General,  in  an  opinion  of  June  15,  1899, 
with  respect  to  concessions  for  the  operation  of  submarine  cables  :  "The  mere 
fact  that  the  Western  Union  Telegraph  Co.  is  enjoying,  under  a  grant  of  ex- 
clusive right,  what  amounts  to  a  monopoly  is  no  reason  of  itself  why  it  should 
be  deprived  of  its  concession.  It  is  easy  to  say  that  monopolies  are  odious, 
but  there  are  concessions  which  amount  to  monopolies  which  are  lawful  and 
cannot  be  disturbed  except  by  a  violation  of  public  faith.  .  .  .  The  grant- 
ing of  such  concessions  and  their  operation  have,  in  many  instances,  been  of 
great  advantage  to  commerce  and  to  the  countries  from  which  the  concessions 
were  derived.  .  .  .  Concessions  of  this  kind,  which  carry  with  them  ex- 
clusive rights  for  a  period  of  years,  constitute  property  of  which  the  conces- 
sionary can  no  more  be  deprived  arbitrarily  and  without  lawful  reason  than 
it  can  be  deprived  of  its  personal  tangible  assets.  In  a  case  in  the  Supreme 
Court  of  the  United  States,  1  Wall.  352,  Mr.  Justice  Field  said :  '  The  United 
States  have  desired  to  act  as  a  great  Nation,  not  seeking,  in  extending  their 
authority  over  the  ceded  country,  to  enforce  forfeitures,  but  to  afford  pro- 
tection and  security  to  all  just  rights  which  could  have  been  claimed  from 
the  Government  they  superseded.'  If,  therefore,  the  Western  Union  Tele- 
graph Co.  has  an  exclusive  grant  applicable  to  Cuba  for  cable  rights,  which 
grant  has  not  expired,  it  would  be  violative  of  all  principles  of  justice  to  de- 
stroy its  exclusive  right  by  granting  competing  privileges  to  another  com- 
pany." 22  Ops.  Attys.-Gen.,  514,  516,  518;  Moore,  Dig.,  I,  409-410.  See, 
also,  opinion  of  law  officer,  Division  of  Insular  Affairs,  War  Department,  con- 
cerning the  concession  to  canalize  the  Matadero  River  from  the  Cristina  Bridge 
to  the  Bay  of  Atares,  Magoon's  Reports,  571.  Also  decision  by  the  Swiss 
Federal  Court  concerning  the  duty  of  a  succeeding  State  to  recognize  the  con- 
cessions granted  by  its  predecessors,  published  in  Am.  J.  Int.  L.,  I,  235  (trans- 
lated from  Zeitschrift  fur  Volkerrecht  und  Bundesslaatsrecht  (1906)  ;  also 
opinion  of  Prof.  Max  Huber  on  the  case,  id.,  I,  245  (translated  from  id.). 

^  This  idea  is  emphasized  in  the  Report  of  the  Transvaal  Concession  Com- 
mission above  cited. 

234 


EFFECT  ON  PRIVATE   RIGHTS  [§  132 

of  determining  the  nature  of  concessions  to  be  regarded  as  detri- 
mental rather  than  beneficial  to  territory  transferred,  it  is  believed 
that  care  should  be  taken  to  permit  no  presumptions  of  a  hostile 
or  injurious  purpose  to  be  derived  from  or  attributed  to  circum- 
stances equally  capable  of  sustaining  an  opposing  inference.^ 

Inasmuch  as  there  seems  to  be  a  solid  foundation  for  the  claim 
that  a  new  sovereign  should  maintain  and  respect  the  locally  bene- 
ficial contracts  and  concessions  of  its  predecessor,  and  should 
oftentimes  heed  the  equities  of  adverse  parties,  even  when  the 
arrangements  are  deemed  in  certain  respects  locally  detrimental 
and  subject  to  modification  or  cancellation,  there  is  much  reason 
why  the  treaty  recording  the  transfer  of  sovereignty  should  specify 
the  course  to  be  followed.  In  order  to  safeguard  the  rights  of  all 
concerned,  it  should  make  announcement  of  the  particular  con- 
cessions to  be  maintained,  or  of  the  nature  of  those  to  be  respected, 
or  of  the  principle  to  be  observed  in  efl^ecting  cancellation  or  modi- 
fication.^ 


§  132.   Effect  on  Private  Rights. 

Rights  of  private  property  validly  created  remain  unaffected 
by  a  change  of  sovereignty  over  the  territory  to  which  they  may 
be  said  to  belong.  Declared  Chief  Justice  Marshall  in  the  case 
of  the  United  States  v.  Percheman : 

'  See,  in  this  connection,  the  argument  of  Mr.  Griggs,  Attorney-General,  in 
his  opinion  in  the  case  of  the  Manila  Railway  Co.,  23  Ops.  Attys.-Gen.,  181, 
Moore,  Dig.,  I,  395. 

A  concession  not  unbeneficial  to  the  territory  transferred  may  involve  con- 
secutive payments  by  the  original  grantor  which  at  the  time  of  transfer  was 
insolvent,  and  against  which,  therefore,  the  claims  of  the  concessionaire  for 
compensation  pursuant  to  the  contract  were  at  that  time  of  shght  value.  In 
such  case  it  may  be  fairly  contended  that  the  new  sovereign  may  set  up  in 
excuse  for  non-payment  or  partial  payment,  the  disability  of  its  predecessor, 
and  in  any  scheme  of  rehabilitating  the  finances  of  the  territory,  may  demand 
that  its  liabihty  as  transferee  and  as  successor  to  the  contract  be  measured 
by  the  actual  power  of  the  old  sovereign  to  satisfy  its  obligation  at  the  time 
of  transfer.  See,  in  this  connection,  E.  M.  Borchard,  Diplomatic  Protection, 
§83. 

In  his  paper  entitled  "Change  of  Sovereignty  and  Concessions",  Am.  J., 
XII,  705,  742-743,  Prof.  Francis  B.  Sajrre  expresses  opinion  that  concessions, 
to  be  binding,  must  have  been  granted  with  a  view  to  the  general  improve- 
ment or  benefit  of  the  locus  ceded,  and  states  that  such  a  theory  is  the  peculiar 
contribution  of  America. 

2  Thus,  in  the  convention  with  Denmark  of  Aug.  4,  1916,  for  the  cession  of 
the  Danish  West  Indies,  the  United  States  agreed  to  maintain  nine  specified 
grants,  concessions  and  licenses,  given  by  the  Danish  Government,  in  ac- 
cordance with  the  terms  on  which  they  had  been  granted.  Art.  Ill,  U.  S. 
Treaty  Series,  No.  629  ;  Am.  J.,  XI,  Supp.  53,  55.  Denmark  guaranteed  that 
the  cession  was  free  and  unencumbered  by  any  reservations,  privileges,  fran- 
chises, grants  or  possessions  other  than  were  mentioned  in  the  treaty.     Art.  II. 

235 


§  132]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

It  may  not  be  unworthy  of  remark,  that,  it  is  very  unusual, 
even  in  cases  of  conquest,  for  the  conqueror  to  do  more  than  to 
displace  the  sovereign  and  assume  dominion  over  the  country. 
The  modern  usage  of  nations,  which  has  become  law,  would 
be  violated ;  that  sense  of  justice  and  of  right  which  is  acknowl- 
edged and  felt  by  the  whole  civilized  world  would  be  outraged, 
if  private  property  should  be  generally  confiscated,  and  private 
rights  annulled.  The  people  change  their  allegiance ;  their 
relation  to  their  ancient  sovereign  is  dissolved ;  but  their  rela- 
tions to  each  other,  and  their  rights  of  property,  remain  undis- 
turbed.^ 

Cases  may  arise,  however,  where  the  underlying  principle  is 
inapplicable.  Thus  the  right  of  property  may  take  the  form  of  a 
grant  the  duration  of  which  by  necessary  implication  is  dependent 
upon  the  possession  of  political  power  by  the  existing  sovereign. 
In  such  case  it  has  been  held  that  no  property  as  such  survives 
the  loss  of  sovereignty.^ 

The  United  States  has  demanded  that  the  private  property 

1  7  Pet.  51,  86-87  ;  Moore,  Dig.,  I,  416.  See,  also,  Wilcox  v.  Henry,  1  Dall. 
69 ;  Mutual  Assurance  Society  v.  Watts's  Ex'r.,  1  Wheat.  279 ;  De  la  Croix  v. 
Chamberlain,  12  Wheat.  599,  601 ;  United  States  v.  Arredondo,  6  Pet.  691 ; 
United  States  v.  Clarke,  8  Pet.  436  ;  Delassus  v.  United  States,  9  Pet.  117,  133  ; 
Mitchel  V.  United  States,  9  Pet.  711,  734;  Smith  v.  United  States,  10  Pet. 
326 ;  Strother  v.  Lucas,  12  Pet.  410,  436 ;  United  States  v.  Heirs  of  Clarke, 
16  Pet.  228,  231-232 ;  United  States  v.  Moreno,  1  Wall.  400 ;  Coffee  v.  Groover, 
123  U.  S.  1 ;  Astiazaran  v.  Santa  Rita  Land  and  Mining  Co.,  148  U.  S.  80; 
United  States  v.  Chaves,  159  U.  S.  452,  547 ;  Rio  Arriba  Land  and  Cattle 
Company  v.  United  States,  167  U.  S.  298,  309 ;  Ely's  Adm.  v.  United  States, 
171  U.  S.  220,  223  ;  Ainsa  v.  New  Mexico  and  Arizona  Railroad  Co.,  175  U.  S. 
76,  79;  Barker  v.  Harvey,  181  U.  S.  481,  486;  Ponce  v.  Roman  Catholic 
Church,  210  U.  S.  296,  324 ;  Panama  R.  R.  Co.  v.  Bosse,  249  U.  S.  41,  44. 

See,  also,  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Roberts,  Mar.  20,  1886, 
MS.  Inst.  Chih,  XVII,  196,  200,  Moore,  Dig.,  I,  421,  422,  where  it  was  said  : 
"The  Government  of  the  United  States  therefore  holds  that  titles  derived 
from  a  duly  constituted  prior  foreign  Government  to  which  it  has  succeeded 
are  'consecrated  by  the  law  of  nations'  even  as  against  titles  claimed  under 
its  own  subsequent  laws.  The  rights  of  a  resident  neutral  —  having  become 
fixed  and  vested  by  the  law  of  the  country  —  cannot  be  denied  or  injuriously 
affected  by  a  change  in  the  sovereignty  or  pubUc  control  of  that  country  by 
transfer  to  another  Government.  His  remedies  may  be  affected  by  the  change 
of  sovereignty,  but  his  rights  at  the  time  of  the  change  must  be  measured  and 
determined  by  the  law  under  which  he  acquired  them." 

2  O'Reilly  de  Camara  v.  Brooke,  209  U.  S.  45,  where  it  was  held  that  the 
holder  of  a  heritable  office  in  Cuba  which  had  been  abohshed  prior  to  the  ex- 
tinction of  Spanish  sovereignty,  but  who,  pending  compensation  for  its  con- 
demnation, was  receiving  the  emoluments  of  one  of  the  grants  of  the  office, 
"had  no  property  that  survived  the  extinction  of  the  sovereignty  of  Spain." 
See,  also,  decision  of  Mr.  Root,  Secy,  of  War,  Dec.  24,  1900,  Magoon's 
Reports,  209,  Moore,  Dig;.,  I,  429;  also  Magoon's  Reports,  194.  See,  also, 
Alvarez  y  Sanchez  v.  United  States,  216  U.  S.  167,  affirming  42  Ct.  CI.  458. 
See  in  this  connection  Percy  Bordwell,  "Purchasable  offices  in  ceded  terri- 
tory". Aw.  J.,  Ill,  119;  also  F.  B.  Sayre,  id.,  XII,  705,  717-718. 

236 


EFFECT  ON  PRIVATE  RIGHTS  [§  132 

of  its  nationals  in  countries  not  possessed  of  European  civiliza- 
tion, and  not  belonging  to  States  recognized  as  such,  should, 
nevertheless,  be  respected,  upon  the  establishment  of  rights  of 
sovereignty  therein  by  an  acknowledged  member  of  the  family 
of  nations.^ 

The  general  principle  enunciated  in  the  Percheman  case  has 
received  repeated  recognition  in  treaties  of  cession  concluded  by 
the  United  States,  and  pursuant  to  which  it  became  the  grantee  of 
territory.-  These  agreements  have  been  looked  upon  as  merely 
declaratory  of  the  law  of  nations.^ 

1  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Pendleton,  Feb.  27,  1886,  MS.  Inst. 
Germany,  XVII,  602,  Moore,  Dig.,  I,  422-423  ;  same  to  Mr.  Morrow,  Feb.  26, 
1886 ;  159,  MS.  Dom.  Let.  177,  Moore,  Dig.,  I,  423,  note ;  same  to  the  Portu- 
guese Minister,  Mar.  3,  1886,  For.  Rel.  1886,  772,  Moore,  Dig.,  I,  424;  same 
to  Mr.^  von  Alvensleben,  German  Minister,  Mar.  4,  1886,  For.  Rel.  1886,  333, 
Moore,  Dig.,  I,  424 ;  Mr.  Foster,  Secy,  of  State,  to  Mr.  White,  Charge  at 
London,  Nov.  5,  1892,  For.  Rel.  1892,  237  239,  Moore,  Dig.,  I,  425-426.  See, 
also,  message  of  President  Cleveland  on  Fiji  Island  claims  against  Great  Brit- 
ain, Feb.  14,  1896  ;  report  of  Mr.  Olney,  Secy,  of  State,  Feb.  14,  1896 ;  report 
of  George  H.  Scidmore,  Jifly  3,  1893,  all  contained  in  For.  Rel.  1895,  I,  739 
et  seq. 

2  See,  for  example.  Art.  Ill,  treaty  with  France,  April  30,  1803,  providing 
for  the  cession  of  Louisiana,  Malloj^'s  Treaties,  I,  509 ;  Art.  VIII,  treaty  with 
Spain,  Feb.  22,  1819,  id.,  II,  1654;  Arts.  VIII  and  IX,  treaty  with  Mexico, 
Feb.  2,  1848,  id.,  I,  1111-1112;  Art.  Ill,  treaty  with  Russia,  Mar.  30,  1867, 
id.,  II,  1523;  Arts.  IX  and  XIII,  treaty  with  Spain,  Dec.  10,  1898,  id.,  1693- 
1694. 

It  is  believed  that  the  following  provision  contained  in  Art.  II  of  the  con- 
vention between  the  United  States  and  Denmark  of  Aug.  4,  1916,  providing 
for  the  cession  of  the  Danish  West  Indies,  contains  significant  recognition  of 
the  underlying  principle  involved:  "But  it  is  understood  that  this  cession 
does  not  in  any  respect  impair  private  rights  wliich  by  law  belong  to  the  peace- 
ful possession  of  property  of  all  kinds  by  private  individuals  of  whatsoever 
nationality,  by  municipalities,  pubUc  or  private  establishments,  ecclesiastical 
or  civic  bodies,  or  anj^  other  associations  having  legal  capacity  to  acquire 
and  to  possess  property  in  the  islands  ceded."  Treaty  Series  No.  629 ;  Am.  J., 
XI,  Supp.  54.  Also,  Art.  X,  treaty  of  peace  between  Russia  and  Japan,  Aug.  23 
(Sept.  5),  1905,  For.  Rel.  1905,  826;  Art.  XI,  treaty  between  Turkey  and 
Greece,  Nov.  1  (14),  1913,  Coleman  Phillipson,  Termination  of  War  and 
Treaties  of  Peace,  452 ;  A7n.  J.,  VIII,  Supp.  49. 

Cf.  Report  of  Mr.  INIagoon,  law  officer,  Division  of  Insular  Affairs,  War  De- 
partment, Mar.  27,  1901,  as  to  the  protection  under  Arts.  I  and  VIII,  the  treaty 
of  peace  with  Spain,  Dec.  10,  1898,  of  trade-marks  in  Cuba  and  the  Philippines, 
previously  registered  at  the  Bureau  for  the  Protection  of  Industrial  Property 
at  Berne,  Magoon's  Reports,  305.  See,  also,  report  of  the  same  officer,  Apr.  16, 
1901,  on  the  "Right  of  the  municipality  of  Habana  to  exercise  over  property 
owned  by  said  city  the  rights  which  by  law  belong  to  the  peaceful  possession 
of  the  property."  Id.,  541 ;  report  of  same  officer,  April  20,  1901,  on  "Certain 
rights  of  municipalities  in  Cuba."  Id.,  374;  report  of  same  officer,  May  22, 
1900,  on  "Mining  claims  and  appurtenant  privileges  in  Cuba,  Porto  Rico,  and 
the  Philippines."  Id.,  351.  See,  also,  in  re  certain  revocable  licenses  in  Porto 
Rico.     Id.,  650. 

3  Soulard  v.  United  States,  4  Pet.  511 ;  Delassus  v.  United  States,  9  Pet.  117, 
133  ;  Dent  v.  Emmeger,  14  Wall.  308,  312  ;  Ponce  v.  Roman  Cathohc  Church, 
210  U.  S.  296,  324.  Also  Moore,  Dig.,  I,  416.  See  A.  B.  Keith,  Theory  of  State 
Succession,  79-84,  concerning  British  practice  and  certain  difficulties  incidental 
thereto. 

237 


§  133]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

§  133.    The  Same. 

By  the  treaty  of  peace  with  Germany  of  June  28,  1919,  the 
Allied  and  Associated  Powers  reserved  the  right  to  retain  and  liq- 
uidate all  property,  rights  and  interests  belonging,  at  the  date 
of  the  coming  into  force  of  the  treaty,  to  German  nationals,  or 
companies  controlled  by  them,  within  territory  detached  from 
Germany  by  cession  (as  well  as  within  the  territories,  colonies, 
possessions  and  protectorates  of  those  Powers).^  This  action 
was  based  upon  the  theory  that  it  was  necessary  to  utilize  enemy 
private  property  within  places  subject  to  the  control  of  the  Allied 
and  Associated  Powers  as  a  means  of  enabling  them  to  recover 
a  part  of  their  claim  against  Germany.  The  application  of  meas- 
ures of  liquidation  to  private  property  within  ceded  territory 
was  merely  incidental  to  the  broader  claim  enforced  against  the 
grantor.  Nor  did  it  appear  to  have  any  bearing  upon  the  prin- 
ciple of  international  law  with  respect  to  the  effect  of  transfer  of 
sovereignty.  It  should  be  observed  that  Germany  undertook 
to  compensate  its  nationals  in  respect  of  the  sale  or  retention 
of  their  property,  rights  or  interests  "in  Allied  or  Associated 
States",^  and  that  those  States  did  not  admit  that  their  action 
was  confiscatory.^ 

As  the  grantee  of  territory  the  United  States  has  been  regarded 
by  the  Supreme  Court  as  having  assumed  the  duty  to  treat  as 
property  requiring  protection  under  the  terms  of  appropriate 
treaties,  equitable  as  well  as  legal  titles  t,o  lands,  and  such  as  would 
have  been  a  charge  upon  the  conscience  of  the  former  sovereign.^ 
Thus  the  absence  of  a  legal  title  at  the  time  of  cession  has  not 

1  Arts.  297,  298,  and  Annex  following  the  latter.  Also  Arts.  249,  250,  and 
Annex  following  the  latter,  of  the  treaty  of  peace  between  the  Principal  AUied 
and  Associated  Powers,  and  Austria,  of  Sept.  10,  1919. 

2  Art.  297  (i)  of  treaty  of  peace  with  Germany. 

2  Reply  of  the  Allied  and  Associated  Powers,  of  June  16,  1919,  to  Observa- 
tions of  the  German  Delegation  on  conditions  of  peace.  Misc.  No.  4,  1919, 
(Cmd.)  258,  51-54.  Also  provisions  of  Art.  253  saving  from  prejudice  in  any 
manner  from  the  operation  of  previous  provisions  "charges  or  mortgages 
lawfully  effected  in  favour  of  the  Allied  or  Associated  Powers  or  their  nationals 
respectively,  before  the  date  at  which  a  state  of  war  existed  between  Germany 
and  the  Allied  or  Associated  Power  concerned,  by  the  German  Empire  or  its 
constituent  States,  or  by  German  nationals,  on  assets  in  their  ownership  at 
that  date."     Cf.  infra,  §§  621-622. 

*  Strother  v.  Lucas,  12  Pet.  410,  436,  where  it  was  stated :  "This  court  has 
defined  property  to  be  any  right,  legal  or  equitable,  inceptive,  inchoate  or 
perfect,  which,  before  the  treaty  with  France  in  1803,  or  with  Spain  in  1819, 
had  so  attached  to  any  piece  or  tract  of  land,  great  or  small,  as  to  affect  the 
conscience  of  the  former  sovereign  'with  a  trust',  and  make  him  a  trustee  for 
an  individual,  according  to  the  law  of  nations,  of  the  sovereign  himself,  the 
local  usage  or  custom  of  the  colony  or  district ;  according  to  the  principles  of 
justice,  and  rules  of  equity." 

238 


BURDENS  OF  CLAIMANTS  [§  133 

been  fatal  to  a  claimant,  when  he  had  received  an  unconditional 
grant,  valid  according  to  the  law  of  the  former  sovereign,  and  from 
which  he  might  have  obtained  a  legal  title  had  not  the  transfer 
taken  place. ^  Where  the  former  sovereign  imposed  a  condition 
precedent  which  was  not  performed  by  the  claimant  either  prior  to 
the  cession  or  thereafter,  and  no  excuse  for  non-performance  was 
shown,  no  equitable  title  has  been  deemed  to  survive  the  change 
of  sovereignty  and  burden  the  grantee.^  The  situation  has  been 
otherwise  regarded,  however,  where  the  condition  imposed  by  the 
grantor  State  was  a  condition  subsequent,  of  which  performance 
was  rendered  impossible  by  the  act  of  the  grantor  (through  its 
cession  of  territory)  and  was  a  matter  of  no  importance  to  the 
grantee  State  .^ 

The  United  States  has  been  unwilling  to  admit  that  the  cession 
to  itself  of  territory  has  served  to  lessen  the  duty  of  the  grantee 
of  land,  or  so  to  diminish  the  burdens  of  an  individual  claimant 
as  to  transform  an  equitable  into  a  legal  title.^  It  has  frequently 
been  declared  by  the  Supreme  Court  that  the  duty  of  providing 
a  mode  or  system  for  the  establishment  of  rights  of  private  and 
immovable  property,  and  of  ascertaining  thereby  the  extent  of  the 
obligation  of  the  new  sovereign,  rests  upon  the  political  department 

1  Delassus  v.  United  States,  9  Pet.  117,  133-135.  See,  also,  Mitchel  v. 
United  States,  9  Pet.  711,  734;  United  States  v.  Clarke,  9  Pet.  168;  United 
States  V.  Heirs  of  Clarke,  16  Pet.  228,  231-232. 

2  United  States  v.  Kingsley,  12  Pet.  476,  485 ;  also  United  States  v.  Mills's 
Heirs,  12  Pet.  215. 

3  United  States  v.  Arredondo,  6  Pet.  691,  745-746. 

"The  true  rule  of  law  would  seem  to  be  that  the  receiving  State  should  have 
the  right  at  the  time  of  cession  to  declare  that  it  will  not  allow  under  its  juris- 
diction and  law  the  further  completion  of  title  by  the  performance  of  unful- 
filled conditions,  and  will  therefore  grant  titles  only  to  such  claimants  as  are 
at  the  time  of  cession  substantially  owners  of  the  interest  claimed.  Where 
no  such  declaration  is  made,  however,  it  would  seem  that  the  receiving  State 
should  be  compelled  to  perfect  the  titles  of  claimants  who  have  in  good  faith 
performed  after  cession  the  unfulfilled  conditions  of  their  grants  before  the 
expiration  of  the  time  allowed  in  the  condition."  Francis  B.  Sayre,  "Change 
of  Sovereignty  and  Private  Ownership  of  Land",  Am.  J.,  XII,  475,  488. 

*  Thus,  it  was  said  in  De  la  Croix  v.  Chamberlain :  "  It  may  be  admitted, 
that  the  United  States  were  bound,  in  good  faith,  by  the  terms  of  the  treaty 
of  cession,  by  which  they  acquired  the  Floridas,  to  confirm  such  concessions 
as  had  been  made  by  warrants  of  survey ;  yet,  it  would  not  follow,  that  the 
legal  title  would  be  perfected  until  confirmation.  The  Government  of  the 
United  States  has,  throughout,  acted  upon  a  difi"erent  principle  in  relation 
to  these  inchoate  rights,  in  all  its  acquisitions  of  territory,  whether  from  Spain 
or  France.  Whilst  the  Government  has  admitted  its  obligation  to  confirm 
such  inchoate  rights  or  concessions  as  had  been  fairly  made,  it  has  maintained, 
that  the  legal  title  remained  in  the  United  States,  until,  by  some  act  of  con- 
firmation, it  was  passed,  or  relinquished  to  the  claimants.  It  has  maintained 
its  right  to  prescribe  the  forms  and  manner  of  proceeding  in  order  to  obtain 
a  confirmation,  and  its  right  to  establish  tribunals  to  investigate  and  pronounce 
upon  their  fairness  and  validity."  12  Wheat.  599,  601.  See,  also,  Cessna  v. 
United  States,  169  U.  S.  165,  186-187. 

239 


§  133]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

of  the  Government,^  and  that  that  department  may  reasonably  de- 
mand that  the  vahdity  of  a  title  derived  from  a  prior  sovereign  be 
judicially  determined.^ 

The  validity  of  any  act  attributable  to  the  former  sovereign  as 
such  must  be  obviously  tested  according  to  its  laws.^  The  new 
sovereign  may,  however,  exercise  its  own  judgment  in  determining 
what  shall  be  required  as  proof  of  the  validity  of  acts  of  its  prede- 
cessor.^ 

The  law  of  nations  imposes  no  duty  upon  a  State  to  permit  non- 
resident aliens  to  retain  title  to  immovable  property  within  the  na- 
tional domain.  The  new  sovereign  may,  therefore,  not  unreason- 
ably demand  that  the  retention  of  ownership  of  such  property  be 
dependent  upon  the  continued  residence  of  the  owners  therein, 
and  upon  the  severing  of  any  existing  ties  of  allegiance  to  the  former 
sovereign.  Thus  treaties  of  cession  not  infrequently  provide 
that  the  existing  owners  of  immovable  property  desirous  of  re- 
taining their  national  character,  be  given  reasonable  opportunity 
to  dispose  of  their  holdings.^     The  terms  of  a  treaty  may  not, 

'  De  la  Croix  v.  Chamberlain,  supra;  Astiazaran  v.  Santa  Rita  Land  and 
Mining  Co.,  148  U.  S.  80,  81 ;  United  States  v.  Santa  Fe,  165  U.  S.  675,  714; 
Ainsa  v.  New  Mexico  and  Arizona  Railroad  Co.,  175  U.  S.  76,  79. 

^  See  Ainsa  v.  New  Me.xico  and  Arizona  Railroad  Co.,  supra.  The  opinion 
of  the  court  by  Mr.  Justice  Gray  contains  a  summary  of  the  several  acts  of 
Congress  providing  for  the  confirmation  of  titles  of  claimants  to  lands  in 
Louisiana,  the  Floridas,  California  and  New  Mexico,  granted  by  the  former 
sovereigns  of  those  territories.  See,  also,  Florida  v.  Furman,  180  U.  S.  402 ; 
Barker  v.  Harvey,  181  U.  S.  481. 

3  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Roberts,  Mar.  20,  1886,  MS.  Inst, 
Chili,  XVII,  196,  200,  Moore,  Dig.,  I,  421-422;  United  States  v.  Clarke, 
8  Pet.  436,  450,  wi.th  reference  to  Art.  VIII  of  the  treaty  with  Spain  of  Feb.  22, 
1819,  providing  for  the  protection  of  certain  Spanish  grants  of  land  in  the 
territories  ceded.     Also  Kealoha  i'.  Castle,  210  U.  S.  149. 

*  Hayes  v.  United  States,  170  U.  S.  637,  647,  with  reference  to  the  Act  of 
Congress  of  March  3,  1891,  creating  a  Court  of  Private  Land  Claims  for  the 
adjustment  of  land  titles  in  Mexico  and  Arizona,  as  compared  with  certain 
earlier  legislation  of  Congress;  also  Ely's  Admr.  v.  United  States,  171  U.  S. 
220,  224 ;  United  States  v.  Elder,  177  U.  S.  104 ;  Whitney  v.  United  States, 
181  U.  S.  134,  114.  Compare  the  statutes  construed  in  L^nited  States  v. 
Arredondo,  6  Pet.  691,  with  reference  to  grants  by  the  Spanish  Crown  in  Florida, 
and  United  States  v.  Peralta,  19  How.  343,  with  reference  to  prior  grants  in 
California. 

In  his  paper  on  "Change  of  Sovereignty  and  Private  Ownership  of  Land", 
Am.  J.,  XII,  475,  495,  Prof.  Francis  B.  Sayre  concludes:  "There  can  be  no 
question  that  LTnited  States  courts  will  not  allow  a  mere  cession  of  territory 
to  the  United  States  to  injure  or  abrogate  vested  rights  of  land  ownership, 
legal  or  equitable,  held  by  individuals  at  the  time  of  cession.  It  is  equally 
clear  that  United  States  courts  will  feel  free  to  disregard  mere  expectant  rights 
which  could  not  have  been  enforced  as  of  right  in  the  courts  of  the  ceding 
State.  Grants  which  were  unenforceable  before  cession  either  because  of 
unperformed  conditions,  or  because  of  the  indefiniteness  of  the  grant,  or  be- 
cause of  the  want  of  power  in  the  granting  officer  or  imperfection  in  the  grant 
itself,  will  clearly  not  be  upheld  by  United  States  courts." 

*  See,  for  example,  Art.  IX,  treaty  between  the  United  States  and  Spain, 

240 


IN  GENERAL  [§  134 

however,  intimate  that  residence  within  the  territory  transferred 
and  allegiance  to  the  new  sovereign  thereof  are  essential  to  the 
retention  of  title.^ 

3 

NATURE  AND  LIMITS  OF  RIGHTS 

a 

Extent  of  the  National  Domain 

(1) 
§  134.   In  General. 

The  territory  of  a  State  consists  of  the  area,  both  land  and 
water,  confined  by  definite  boundaries,  and  over  which  an  exclu- 
sive right  of  sovereignty  is  claimed  and  enjoyed.^  The  extent 
of  the  area  is  in  a  broad  sense  limited  by  the  requirements  of  the 
law  of  nations.  The  extent  of  the  control  which  the  State  is  per- 
mitted to  exercise  therein  is  likewise  so  held  in  restraint  or  deter- 
mined.^ 

The  extent  of  both  the  right  and  the  duty  of  a  State  to  do  jus- 
tice within  its  own  domain,  as  well  as  elsewhere,  is  also  fixed  by 

Dec.  10,  1898,  Malloy's  Treaties,  II,  1693.  CJ.  United  States  v.  Repentigny,  5 
Wall.  211. 

1  According  to  Art.  VI  of  the  convention  between  the  United  States  and 
Denmark  of  Aug.  4,  1916,  providing  for  the  cession  of  the  Danish  West  Indies  : 
"Danish  citizens  residing  in  said  islands  may  remain  therein  or  may  remove 
therefrom  at  will,  retaining  in  either  event  all  their  rights  of  property,  includ- 
ing the  right  to  sell  or  dispose  of  such  property  or  its  proceeds ;  in  case  they 
remain  in  the  islands,  they  shall  continue  imtil  otherwise  provided,  to  enjoy 
all  the  private,  municipal  and  religious  rights  and  liberties  secured  to  them 
by  the  laws  now  in  force.  If  the  present  laws  are  altered,  the  said  inhabitants 
shall  not  thereby  be  placed  in  a  less  favorable  position  in  respect  to  the  above- 
mentioned  rights  and  liberties  than  they  now  enjoy. 

"Danish  citizens  not  residing  in  the  islands  but  owning  property  thsrein 
at  the  time  of  the  cession,  shall  retain  their  rights  of  property,  including  the 
right  to  sell  or  dispose  of  such  property,  being  placed  in  this  regard  on  the  same 
basis  as  the  Danish  citizens  residing  in  the  island  and  remaining  therein  or 
removing  therefrom,  to  whom  the  first  paragraph  of  this  article  relates." 
Treaty  Series  No.  629,  Am.  J.,  XI,  Supp.,  57-58. 

In  the  treaty  of  peace  with  Germany  of  June  28,  1919,  there  was  frequent 
provision  that  persons  habitually  resident  in  territory  transferred,  who  elected 
to  opt  for  the  nationality  of  the  transferor,  and  in  consequence  were  obliged 
to  transfer  their  residence  to  its  domain,  should  still  be  entitled  to  retain  their 
immovable  property  in  the  ceded  territorj'.     See,  for  example.  Arts.  37  and  106. 

2  Hall,  5  ed.,  100,  quoted  in  Moore,  Dig.,  I,  615.  See,  also,  Bonfils-Fauchille, 
7  ed.,  §§  483-489  ;  Calvo,  5  ed.,  I,  382-384 ;  Oppenheim,  2  ed.,  I,  §§  168-171 ; 
Rivier,  I,  135-143;  Pradier-Fodere,  II,  144-151;  Martens,  I,  451-459; 
Woolsey,  6  ed.,  67-68  ;  Beale's  Cases  on  Conflict  of  Laws,  III,  Summarv,  §  19. 

3  Cf.  Reg.  V.  Keyn,  13  Cox  C.  C.  403,  2  Ex.  D.  63  ;  Beale's  Cases  on  Conflict 
of  Laws,  I,  1. 

241 


§  134]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

international  law.  Inasmuch,  however,  as  the  scope  of  what 
may  be  described  as  the  privileges  and  obligations  of  jurisdiction 
is  not  always  to  be  ascertained  or  measured  by  reference  to  the 
territorial  limits  of  a  State,  or  by  the  degree  of  control  which  it 
may  lawfully  exercise  within  those  bounds,  the  subject  is  discussed 
elsewhere.^ 

(2) 
Various  Territorial  Limits 

(a) 
§  135.   Artificial  Lines. 

A  treaty  may  provide  that  the  boundary  between  two  States 
shall  follow  certain  imaginary  lines,  such  as  a  parallel  of  latitude 
or  a  meridian  of  longitude,  or  a  straight  line  connecting  two  given 
points.^ 

(b) 
§  136.    Mountains  and  Hills. 

A  range  of  mountains  or  hills  may  be  the  boundary  between 
two  States.  In  such  case  the  line  of  demarcation  follows  the 
watershed.^     Professor  Moore  has  observed  that  "this  rule,  while 

1  Rights  of  Jurisdiction,  infra,  §§  218-265;  Duties  of  Jurisdiction,  infra, 
§§  266-269. 

2  See,  for  example,  Art.  I  of  the  treaty  between  the  United  States  and 
Mexico,  Dec.  30,  185.3.  This  Article  also  provided  for  the  survey  and  estab- 
lishment of  the  boundary  line  by  a  mixed  commission,  and  declared  that 
"the  dividing  line  thus  established  shall  in  all  time  be  faithfully  respected 
by  the  two  Governments."  Malloy's  Treaties,  I,  1121.  Mr.  Gushing,  At- 
torney-General, was  of  opinion  that  in  view  of  the  language  of  the  treaty,  the 
monuments  and  other  descriptions  of  the  line  as  established  by  the  Com- 
mission should  be  regarded  as  the  true  line  of  demarcation,  even  though  it 
should  afterwards  appear  that  "by  reason  of  error  of  astronomical  observa- 
tions or  of  calculation,  it  varied  from  the  parallel  of  latitude  where  that  was 
the  line,  or  in  the  other  part  did  not  make  exactly  a  straight  line."  8  Ops. 
Attys.-Gen.,  175-176,  Moore,  Dig.,  I,  615. 

Concerning  the  error  in  the  original  demarcation  of  the  Northeastern 
Boundary  of  the  United  States  at  Rouse's  Point,  see  Moore,  Dig.,  I,  615, 
note,  citing  Moore,  Arbitrations,  I,  70-71,  80,  112,  119,  129,  135-136,  149-153. 

See  United  States  v.  Texas,  162  U.  S.  1 ;  also  Moore,  Dig.,  I,  616,  concern- 
ing the  interpretation  of  Art.  IV,  of  the  treaty  between  the  United  States  and 
Spain  of  Feb.  22,  1819.  See  treaty  between  the  United  States  and  Great 
Britain,  April  11,  1908,  providing  for  the  more  complete  definition  and  demarca- 
tion of  the  international  boundary  between  the  United  States  and  the  Do- 
minion of  Canada,  Malloy's  Treaties,  I,  815,  Am.  J.,  II,  Supp.,  306.  Also 
Lord  Curzon  of  Kedleston.  "Frontiers",  Roumanes  Lecture,  Oxford,  1907. 

^  Mr.  George  Canning,  British  Foreign  Secretary,  wrote  to  Mr.  S.  Canning, 
Dec.  8,  1824,  with  reference  to  the  establishment  of  a  line  of  demarca- 
tion between  British  and  Russian  Possessions  in  Alaska  :  "  It  is  quite  obvious 
that  the  boundary  of  mountains,  where  they  exist,  is  the  most  natural  and 
effectual  boundary."      Proceedings,    Alaskan  Boundary  Tribunal,  Appendix 

242 


PRELIMINARY  [§  137 

simple  enough  in  principle,  is  often  exceedingly  diflBcult  of  applica- 
tion." 1 

(C) 
Rivers 

(i) 
§  137.    Preliminary. 

In  the  Middle  Ages,  rivers  which  separated  alien  peoples  or 
tribes  were  looked  upon  as  neutral  barriers  rather  than  areas  sus- 
ceptible of  nice  division  and  capable  of  ownership.^  There  grad- 
ually arose,  however,  a  sense  of  the  necessity  for  the  assertion 
of  control  over  such  waters ;  but  there  was  confusion  of  thought 
as  to  the  nature  and  extent  of  that  control.  Rivers  served  as 
natural  arteries  of  commerce  as  well  as  natural  boundaries.  The 
matter  of  navigation  was  of  as  great  moment  as  that  of  territorial 
limits.  For  that  reason,  early  writers  announced  the  principle 
of  co-dominion,  which  assigned  to  the  opposite  riverain  proprietors 
rights  of  sovereignty  over  the  entire  stream.^  Men  found  it  diffi- 
cult to  reconcile  the  claim  of  exclusive  sovereignty  asserted  by 
one  State  over  any  portion  of  the  stream,  with  the  claim  of  another 
to  exercise  privileges  of  navigation  therein.  No  doubt  the  latter 
claim  had  a  marked  effect  upon  the  scope  of  the  former.  Never- 
theless, the  requirements  of  navigation  were  not  decisive  of  the 
problem  whether  a  line  of  division  might  be  drawn  through  the 
waters  of  a  river  in  recognition  of  sovereign  rights  of  the  States 
on  either  side  of  such  a  boundary.     It  came  to  be  understood 

to  Case  of  the  United  States,  Vol.  II,  210.  See  line  of  demarcation  between 
the  Russian  and  British  Possessions  in  North  America,  contained  in  the  Anglo- 
Russian  Convention  of  February  28  (16),  1825,  and  embodied  in  Art.  I  of  the 
Convention  between  the  United  States  and  Russia  of  March  30,  1867,  pro- 
viding for  the  cession  of  Alaska,  Malloy's  Treaties,  II,  1521. 

'  Moore,  Dig.,  I,  616,  note.  As  evidence  of  the  truth  of  his  statement 
Profes.sor  Moore  refers  to  the  question  as  to  the  "Highlands"  in  the  North- 
eastern Boundary  dispute  between  the  United  States  and  Great  Britain, 
citing  Moore,  Arbitrations,  I,  65-68,  78,  100,  109.  114,  131,  158-161. 

Concerning  the  controversy  between  Chile  and  the  Argentine  Republic, 
whether  the  boundary  between  their  respective  territories  should,  according 
to  existing  conventions,  be  determined  by  the  watershed  or  by  the  highest 
peak  of  the  Andes,  and  the  agreement  to  adjust  the  difference  bv  arbitration, 
see  For.  Rel.  1896,  32-34 ;  also  Moore,  Arbitrations,  V,  4854-4855. 

See,  also,  award  of  the  arbitrator  January  30,  1897,  in  the  Manica  Arbitra- 
tion between  Great  Britain  and  Portugal,  where  the  boundary  followed  a 
plateau,  the  watershed  of  which  was  not,  for  reasons  given,  regarded  as  the 
true  line  of  demarcation,  Moore,  Arbitrations,  V,  4985-5015. 

-  See  historical  review  by  E.  Nys,  in  his  Droit  Internntional,  2  ed.,  I,  423-437, 
citing,  at  424,  H.  Helmolt  in  Historischcs  Jahrbuch,  1896,  pp.  235  et  seq. 

3  Id.,  I,  425. 

243 


§  137]     GENERAL    RIGHTS    OF   PROPERTY   AND    CONTROL 

that  such  a  Hne  could  be  drawn.  In  accordance  with  the  views 
of  Grotius  and  Vattel,  nations  were  agreed  that  it  should  pass 
through  the  middle  of  the  stream.^  This  method  of  division 
proved,  however,  to  be  unsatisfactory  in  the  case  of  navigable 
rivers ;  for,  in  disregarding  the  course  of  the  principal  channel,  it 
was  likewise  heedless  of  the  equities  of  the  State  which  happened 
to  be  the  more  remote  therefrom.  Nor  did  it  adapt  itself  to  gradual 
changes  which  such  channel  might  undergo.^  As  a  result,  at  the 
beginning  of  the  nineteenth  century,  riparian  States  began  to 
conclude  treaties,  which  proposed  a  different  method  of  division, 
and  which  has  since  become  the  accepted  mode  of  indicating  the 
frontier.  There  has  thus  developed  a  practice  manifesting  general 
adherence  to  a   particular  doctrine.^ 

(ii) 
§  138.   Thalweg. 

It  has  long  been  agreed  that  when  a  navigable  river  forms  the 
boundary  between  two  States,  the  dividing  line  follows  the  thalweg 
of  the  stream.^    The  thalweg,  as  the  derivation  of  the  word  in- 

1  De  Jure  Belli  et  Pacts,  Book  II,  Chap.  3,  Sees.  7  and  8 ;  Chittv's  Vattel 
(1859),  Chap.  22,  Sec.  266,  p.  120. 

2  E.  Engelhardt,  Du  Regime  Conventionnel  des  Fleuves  Internationaux,  Paris, 
1879,  73  ;  Pierre  Orban,  Stude  de  Droit  Fluvial  International,  Paris,  1896,  342- 
346. 

3  Art.  VI  of  Treaty  of  Luneville,  Feb.  9,  1801,  De  Clercq,  Traites,  I,  426, 
following  the  views  expressed  by  the  French  plenipotentiaries  at  the  Congress 
of  Rastadt  in  March  and  April,  1798. 

^  Numerous  treaties  since  the  beginning  of  the  nineteenth  century  make 
express  provision  that  the  frontier  along  navigable  rivers  shall  follow  the 
thalweg.  See,  for  example.  Art.  V  of  the  definitive  treaty  between  France 
and  the  Allies  of  May  30,  1814,  Brit,  and  For.  State  Pap.,  I,  Pt.  I,  156;  also 
collection  of  treaties  containing  similar  provisions,  in  the  argument  of  the 
United  States  in  the  Chamizal  Arbitration  (Washington,  1911),  10-21.  Among 
recent  conventions  to  the  same  effect  may  be  noted  that  between  the  Argentine 
Republic  and  Brazil  of  Oct.  6,  1898,  Brit,  and  For.  State  Pap.,  XC,  85 ;  also 
that  between  Great  Britain  and  France  of  June  14,  1898,  for  the  delimita- 
tion of  possessions  west  of  the  Niger,  Brit,  and  For.  State  Pap.,  XCI,  38,  45. 
Cf.  also  Art.  I,  Treaty  of  Constantinople,  between  Turkey  and  Bulgaria,  of 
Sept.  16/29,  1913,  Brit,  and  For.  State  Pap.,  CVII,  706,  709. 

The  treaties  of  the  United  States  concerning  river  boundaries  lack  uni- 
formity of  expression.  Art.  II  of  the  definitive  treaty  of  peace  with  Great 
Britain  of  Sept.  3,  1783,  provided  that  the  frontier  should  follow  the  "middle" 
of  boundary  rivers  as  well  as  of  water  communications  between  the  Lakes. 
Malloy's  Treaties,  I,  587.  Art.  I  of  the  Webster-Ashbiu-ton  Treaty  of  Aug.  9, 
1842,  provided  that  the  frontier  along  the  river  St.  John  should  follow  the 
"middle  of  the  main  channel."  Id.,  I,  651.  The  treaty  of  April  11,  1908, 
concerning  the  Canadian  international  boundary,  provided  in  Art.  II  respect- 
ing the  St.  Croix  River,  that  the  line  should  "follow  the  center  of  the  main 
channel  or  thalweg  as  naturally  existing,  except  where  such  course  would 
change  or  disturb  or  confhct  with  the  national  character  of  i.«lands  as  already 
established  by  mutual  recognition  and  acquiescence."     Id.,  I,  818.     This  is 

244 


THALWEG  [§  138 

dicates,  Is  the  downway,  or  the  course  followed  by  vessels  of  largest 
tonnage  in  descending  the  river.^  That  course  frequently,  if  not 
commonly,  corresponds  with  the  deepest  channel.  It  may,  how- 
ever, for  special  reasons  take  a  different  path.  Wheresoever  that 
may  be,  such  a  course  necessarily  indicates  the  principal  artery 
of  commerce,  and  for  that  reason  is  decisive  of  the  thalweg.- 

the  first  boundary  convention  of  the  United  States  in  which  the  term  thalweg 
was  employed. 

Art.  II  of  the  treaty  with  Spain  of  Oct.  27,  1795,  provided  that  the  boundary 
along  St.  Mary's  River  should  follow  the  "middle  thereof";  while  Art.  IV 
declared  that  the  "western  boundary  of  the  United  States  which  separates 
them  from  the  Spanish  colony  of  Louisiana  is  the  middle  of  the  channel  or 
bed  of  the  river  Mississippi."  Id.,  II,  1641,  1642.  Art.  Ill  of  the  treaty  with 
Spain  of  Feb.  22,  1819,  provided  that  the  boundary  should  follow  the  "course" 
of  the  Red  River  between  specified  points,  all  islands  therein  being  assigned 
to  the  United  States.     Id.,  II,  1652-1653. 

Art.  II  of  the  treaty  with  Mexico  of  Jan.  12,  1828,  declared  that  between 
specified  points  the  boundary  should  follow  the  "course"  of  the  Rio  Roxo  or 
Red  River.  Id.,  I,  1083.  According  to  Art.  V  of  the  Treaty  of  Guadalupe- 
Hidalgo  of  Feb.  2,  1848,  the  boundary  was  to  proceed  up  the  "middle"  of  the 
Rio  Grande,  "following  the  deepest  channel  where  it  has  more  than  one"; 
also  down  the  "middle"  of  a  specified  branch  of  the  river  Gila.  Id.,  I,  1109. 
Art.  I  of  the  Gadsden  Treaty  with  Mexico  of  Dec.  30,  1853,  referred  to  the 
"middle"  of  the  Rio  Grande,  and  likewise  to  that  of  the  Colorado.  Id.,  I, 
1122.  In  the  preamble  of  the  boundary  convention  with  Mexico  of  Nov.  12, 
1884,  it  was  declared  that  according  to  the  provisions  of  the  two  last-mentioned 
treaties  the  dividing  line  follows  the  "middle  of  the  channel  of  the  Rio  Grande 
and  Rio  Colorado"  ;  and  it  was,  therefore,  provided  in  Art.  I  that  the  dividing 
line  should  forever  "follow  the  center  of  the  normal  channel  of  the  rivers 
named,  notwithstanding  any  alterations  in  the  banks  or  in  the  cour.?e  of  those 
rivers,  provided  that  such  alterations  be  effected  by  natural  causes  through 
the  slow  and  gradual  erosion  and  deposit  of  alluvium,  and  not  by  the  abandon- 
ment of  an  existing  river  bed  and  the  opening  of  a  new  one."    Id.,  I,  1159-1160. 

^Declares  Westlake  :  "When  a  river  forms  the  boundary  between  two 
States  it  is  usual  to  say  that  the  true  line  of  demarcation  is  the  thalweg,  a 
German  word  meaning  literally  the  'downway' ;  that  is,  the  course  taken  by 
boats  going  downstream,  which  again  is  that  of  the  strongest  current,  the  slack 
current  being  left  for  the  convenience  of  ascending  boats.  Thai  in  the  sense 
of  valley  enters  into  thalweg  only  indirectly.  The  immediate  origin  of  the 
word  lies  in  the  use  of  herg  and  thai  to  express  the  upward  and  downward  di- 
rections on  a  stream,  like  amont  and  aval  in  French."  Int.  Law,  2  ed.,  I,  144, 
and  note  1. 

Declared  the  Supreme  Court  of  the  United  States  in  the  case  of  Louisiana 
V.  Mississippi,  202  U.  S.  1,  49:  "The  term  'thalweg'  is  commonly  used  by 
writers  on  international  law  in  definition  of  water  boundaries  between  States, 
meaning  the  middle  or  deepest  or  most  navigable  channel.  And  while  often 
styled  'fairway'  or  'midway'  or  'main  channel',  the  word  itself  has  been 
taken  over  into  various  languages.  Thus,  in  the  treaty  of  Luneville,  Feb.  9, 
1801,  we  find  'le  Thalweg  de  I'Adige',  'le  Thalweg  du  Rhin',  and  it  is  similarly 
used  in  English  treaties  and  decisions,  and  in  the  books  of  publicists  in  every 
tongue." 

According  to  Art.  Ill  of  the  Draft  of  International  Regulations  for  the 
Navigation  of  Rivers,  adopted  by  the  Institute  of  International  Law  in  1887, 
"The  boundary  of  the  States  separated  by  the  river  is  marked  by  the  thalweg; 
that  is,  the  median  line  of  the  channel."  Annuaire,  IX,  182,  J.  B.  Scott,  Reso- 
lutions, 78. 

2  Minnesota  v.  Wisconsin,  252  U.  S.  273,  282 ;  Baker's  4th  ed.  of  Halleck, 
182,  §  23. 

245 


§  138]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

The  Supreme  Court  of  the  I'nited  States,  recognizing  the  doc- 
trine of  thalweg,  has  declared  that  in  the  case  of  navigable  bound- 
ary rivers  the  line  follows  the  "middle  of  the  main  channel  of 
the  stream."  ^ 

The  boundary  line  is  subject  to  the  gradual  and  imperceptible 
changes  of  the  thalweg  due  to  accretion  or  erosion,  and  produced 
by  natural  causes.^  If  from  any  cause  the  change  is  perceptible 
and  sudden  by  a  process  known  as  avulsion,  the  boundary  con- 

1  Iowa  V.  Illinois,  147  U.  S.  1,  7-14;  Handly's  Lessee  v.  Anthonv,  5  Wheat. 
374;  Buttenuth  v.  St.  Louis  Bridge  Co.,  123  111.  535;  Keokuk  &  Hamilton 
Bridge  Co.  w.  The  People,  145  111.  596;  Same  v.  Same,  167  111.  15;  Keokuk  & 
Hamilton  Bridge  Co.  v.  Illinois,  175  U.  S.  626 ;  Bellefontaine  Improvement  Co. 
V.  Niedringhaus,  181  111.  426 ;  Louisiana  v.  Mississippi,  202  U.S.  1 ;  Iowa  v. 
Illinois,  202  U.  S.  59;  Washington  v.  Oregon,  211  U.  S.  127,  134;  214  U.  S. 
205,  215;  Arkansas  v.  Tennessee,  246  U.  S.  158;  247  U.  S.  461;  Arkan.sas 
V.  Mississippi,  250  U.  S.  39,  45.  Compare  opinion  of  Mr.  Crittenden,  Attorney- 
General,  5  Ops.  Attys.-Gen.,  412. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  Iowa  v.  Illinois, 
147  U.  S.  1,  7-14,  declared  that,  according  to  international  law  and  the  usage 
of  European  States,  the  terms  "middle  of  the  stream"  and  the  "mid-channel", 
as  applied  to  a  navigable  river,  are  synonymous  and  interchangeably  used; 
and  that  the  former  was  employed  in  the  latter  sense  in  the  treaty  of  peace 
concluded  by  Great  Britain,  France  and  Spain  at  Paris  in  1763.  There  is 
room  for  doubt  whether  the  quotations  made  from  Wheaton,  Creassy,  Twiss, 
Halleck,  Woolsey  and  Phillimore  sustain  such  a  conclusion.  It  is  believed 
that  prior  to  the  Treaty  of  Luneville  of  1801,  States  commonly  employed  the 
term  "middle  of  the  stream"  or  "midstream"  in  boundary  conventions  for 
the  reason  that  a  line  other  than  one  drawn  midway  between  the  banks  of  a 
river  was  rarely  contemplated.  After  that  treaty.  States  having  become 
familiar  with  the  principle  of  thalweg,  seem  to  have  employed  either  that 
term,  or  some  other  clearly  synonymous  with  it,  whenever  the  new  mode  of 
demarcation  was  intended.  The  principal  boundary  treaties  concluded  since 
the  beginning  of  the  nineteenth  century  afford  abundant  evidence  of  the  fact 
that  States  have  generally  taken  great  care  to  express  their  acceptance  of 
the  principle  of  thalweg,  and  have  avoided  the  use  of  words  the  literal  mean- 
ing of  which  might  encourage  the  inference  that  the  contracting  parties  sought 
to  retain  the  old  method  of  establishing  a  frontier. 

Art.  30  of  the  treaty  of  peace  with  Germany  of  June  28,  1919,  provided 
that  "in  the  case  of  boundaries  which  are  defined  by  a  waterway,  the  terms 
'course'  and  'channel'  used  in  the  present  treaty  signify :  in  the  case  of  non- 
navigable  rivers,  the  median  line  of  the  waterway  or  of  its  principal  arm,  and 
in  the  case  of  navigable  rivers,  the  median  line  of  the  principal  chaimel  of 
navigation." 

2  See  opinion  of  Mr.  Cushing,  Attorney-General,  8  Ops.  Attys.-Gen.,  175; 
Nebraska  v.  Iowa,  143  V.  S.  359;  McBaine  v.  Johnson,  155  Missouri,  191; 
Bellefontaine  Improvement  Co.  v.  Niedringhaus,  181  Illinois,  426;  Argument 
of  the  United  States  in  the  Chamizal  Arbitration,  p.  26.  Also  Art.  I  of  the 
boundary  convention  between  the  L'nited  States  and  Mexico  of  Nov.  12, 
1884,  which  is  believed  to  express  with  exactness  the  correct  rule  of  law  in  the 
requirement,  that  in  order  to  subject  the  boundary  to  variations  of  the  thalweg, 
the  changes  in  the  latter  must  be  "effected  bv  natural  causes."  MaUoy's 
Treaties,  I,  1159-1160. 

In  the  case  of  Washington  v.  Oregon,  211  U.  S.  127,  136,  the  Supreme  Court 
of  the  LTnited  States  declared:  "\Mien,  in  a  great  river  like  the  Columbia, 
there  are  two  substantial  channels,  and  the  proper  authorities  have  named  the 
center  of  one  channel  as  the  boundary  between  the  States  bordering  on  that 
river,  the  boundary,  as  thus  prescribed,  remains  the  boundary,  subject  to  the 
changes  in  it  which  come  by  accretion,  and  is  not  moved  to  the  other  channel, 

246 


THALWEG  [§  138 

tinues  to  follow  the  line  indicated  by  the  previous  channel.^  This 
is  true  whether  the  river  leaving  its  former  bed  thereby  makes  for 
itself  a  new  course,  or  simply  alters  by  enlargement  or  otherwise 
the  path  of  the  principal  channel.^ 

If  a  State  which  is  the  territorial  sovereign  over  lands  on  both 
sides  of  a  river  makes  a  grant  of  territory  on  one  side  of  the 
stream,  "it  retains  the  river  within  its  o^vti  domain,  and  the  newly 

although  the  latter  in  the  course  of  years  becomes  the  most  important  and 
properly  called  the  main  channel  of  the  river." 

1  Cf.  opinion  of  Mr.  Gushing,  Attorney-General,  8  Ops.  Attys.-Gen.,  175; 
Cooley  V.  Golden,  52  Mo.  App.  229 ;  Nebraska  v.  Iowa,  143  U.  S.  359 ;  Missouri 
I'.  Nebraska,  196  U.  S.  23;  Buttenuth  v.  St.  Louis  Bridge  Co.,  123  111.  535, 
546;  Arkansas  v.  Tennessee,  246  U.  S.  158,  173;  Arkansas  v.  Mississippi, 
250  U.  S.  39,  44. 

In  Arkansas  v.  Tennessee,  246  U.  S.  158,  at  175,  Mr.  Justice  Pitney,  in  the 
course  of  the  opinion  of  the  Court,  adverting  to  the  results  of  avulsion  in  caus- 
ing the  boundary  to  remain  in  the  middle  of  the  former  channel,  said :  "An 
avulsion  has  this  effect,  whether  it  results  in  the  drying  up  of  the  old  channel 
or  not.  So  long  as  that  channel  remains  a  running  stream  the  boundary 
marked  by  it  is  still  subject  to  be  changed  by  erosion  and  accretion ;  but  when 
the  water  becomes  stagnant  the  effect  of  these  processes  is  at  an  end ;  the 
boundary  then  becomes  fi.xed  in  the  middle  of  the  channel  as  we  have  defined 
it,  and  the  gradual  filling  up  of  the  bed  that  ensues  is  not  to  be  treated  as  an 
accretion  to  the  shores  but  as  an  ultimate  effect  of  the  avulsion.  The  emer- 
gence of  the  land,  however,  may  or  may  not  follow,  and  it  ought  not  in  reason 
to  have  anj-  controlling  effect  upon  the  location  of  the  boundary  line  in  the  old 
channel."     See,  also,  Whiteside  v.  Norton,  205  Fed.  5. 

2  In  the  case  of  Nebraska  v.  Iowa,  143  U.  S.  359,  the  Supreme  Court  of  the 
United  States  held  that  while  there  might  be  an  instantaneous  and  obvious 
erosion  on  one  side  of  the  Missouri  River,  if  the  accretion  to  the  other  side 
was  gradual  and  imperceptible  by  alluvial  deposits,  the  boundary  would  follow 
the  changes  in  the  channel  thus  effected  notwithstanding  their  rapidity. 

In  the  case  of  the  Chamizal  Arbitration  before  the  Special  International 
Boundary  Commission,  under  the  convention  between  the  L^nited  States  and 
Mexico  of  June  24,  1910,  a  grave  problem  arose  concerning  the  interpretation 
of  the  boundary  convention  between  those  countries  of  Nov.  12,  1884,  relating 
to  the  Rio  Grande  and  Rio  Colorado.  Art.  I  of  that  convention  provided  that 
the  dividing  line  should  follow  the  center  of  the  normal  channel  of  those  rivers 
irrespective  of  any  alterations  in  their  banks  or  courses,  provided  that  such 
alterations  were  "effected  by  natural  causes  through  the  slow  and  gradual 
erosion  and  deposit  of  alluvium  and  not  by  the  abandonment  of  an  existing 
river  bed  and  the  opening  of  a  new  one."  The  presiding  commissioner,  Prof. 
La  Fleur,  and  the  Alexican  commissioner,  Mr.  Puga,  who  constituted  a  ma- 
jority of  the  tribunal,  were  of  opinion  that  the  language  quoted  signified  that 
the  boundary  should  not  vary  with  alterations  in  the  course  of  the  Rio  Grande 
in  case  of  a  rapid  and  obvious  erosion  even  though  there  might  be  no  abandon- 
ment of  the  river  bed.  The  American  commissioner,  Gen.  Mills,  was,  however, 
of  opinion  that  it  was  impossible  to  impute  to  the  contracting  parties  an  in- 
tention to  prevent  the  boundary  from  following  changes  in  the  course  of  the 
river  in  the  case  of  rapid  and  perceptible  erosion  unless  there  was  also  an 
abandonment  of  the  existing  river  bed.  For  the  text  of  the  award  of  the 
court  and  the  dissenting  opinion  of  the  American  commissioner,  see  Am. 
J.,  V,  782. 

Art.  30  of  the  treaty  of  peace  with  Germany  of  June  28,  1919,  entru.sted 
to  the  boundary  commissions  provided  by  the  treaty  "to  specify  in  each  case 
whether  the  frontier  line  .shall  follow  any  changes  of  the  course  or  channel 
which  may  take  place,  or  whether  it  shall  be  definitely  fixed  by  the  position 
of  the  course  or  channel  at  the  time  when  the  present  treaty  comes  into  force." 

247 


§  138]     GENERAL    RIGHTS    OF   PROPERTY   AND    CONTROL 

erected  State  extends  to  the  river  only."  ^  Treaties  have  oftentimes 
recognized  the  fact  that  a  river,  instead  of  forming  the  boundary 
between  two  States,  may  be  itself  a  part  of  the  national  domain  of 
one  riparian  proprietor,  the  limit  of  whose  territory  is  the  further 
edge  of  the  stream.^ 

When  a  river  forms  the  boundary  between  two  States,  neither  of 
them  possesses  the  right  to  change,  by  means  of  artificial  works  or 
otherwise,  the  natural  course  of  the  thalweg,  and  so  alter  the  line 
of  demarcation  or  affect  the  navigability  of  the  stream.  It  would 
be  unjust,  as  was  early  perceived  by  Vattel,^  for  one  riparian  pro- 
prietor so  to  promote  its  own  advantage  at  its  neighbor's  expense. 
Numerous  treaties  give  recognition  to  this  principle.  While  they 
announce  that  lawful  modification  of  a  boundary  by  artificial  means 
requires  the  consent  of  both  the  States  concerned,  they  sometimes 
contemplate  uses,  obstructions  or  diversions  to  be  made  in  ac- 
cordance with  the  approval  of  a  joint  commission.^  It  must  be 
clear  that  no  agreement  of  the  States  whose  territories  are  divided 
by  a  river  can  render  lawful  acts  on  the  part  of  either  sovereign 

^  Handly's  Lessee  v.  Anthony,  5  Wheat.  374. 

Writes  Hall :  ''Upon  whatever  grounds  property  in  the  entirety  of  a  stream 
or  lake  is  established,  it  would  seem  in  all  cases  to  carry  with  it  a  right  to  the 
opposite  bank  as  accessory  to  the  use  of  the  stream,  and  perhaps  it  even  gives 
a  right  to  a  sufficient  margin  for  defensive  or  revenue  purposes,  when  the  title 
is  derived  from  occupation,  or  from  a  treaty  of  which  the  object  is  to  mark  out 
a  political  frontier."     5  ed.,  12.3,  quoted  in  Moore,  Dig.,  I,  617,  note. 

^  Cf.,  for  example,  Art.  HI  of  the  treaty  between  the  L'nited  States  and 
Spain  of  Feb.  22,  1819,  relative  to  the  boimdary  along  the  river  Sabine,  Malloy's 
Treaties,  H,  1652;  also  texts  of  boundary  conventions  in  the  Argument  of 
the  United  States  in  the  Chamizal  Arbitration,  21-24. 

In  the  Argument  of  the  United  States  in  the  Chamizal  Arbitration  there  is 
noted  (p.  24)  a  small  group  of  European  boundary  treaties,  which  provide 
that  the  thalweg  shall  be  designated  at  fixed  points,  which  shall  thereafter 
be  regarded  as  forming  a  fixed  line  of  demarcation,  notwithstanding  subse- 
quent changes  of  the  channel.  The  text  of  the  boundary  convention  between 
Russia  and  Westphalia  of  May  14,  1811,  is  quoted. 

'  Chitty's  ed.,  §  271,  p.  122.  See,  also,  Bluntschli,  Das  Moderne  Volkerrecht 
der  Civilisirten  Staaten,  §  299;   Calvo,  5  ed.,  I,  §  342,  p.  466. 

^  See,  for  example,  Arts.  II,  III,  and  IV  of  treaty  between  the  United  States 
and  Great  Britain  respecting  the  boundarv  waters  between  the  United  States 
and  Canada,  Jan.  11,  1909,  Charles'  Treaties,  40-41,  Am.  J.,  IV,  Supp.,  239; 
Art.  VII  of  treaty  between  the  Ignited  States  and  Mexico,  Feb.  2,  1848, 
Malloy's  Treaties,  I,  1111;  Art.  Ill  of  boundary  convention  between  the 
United  States  and  Mexico,  Nov.  12,  1884,  id.,  1160;  Art.  V  of  boundary  con- 
vention between  the  United  States  and  Mexico,  Mar.  1,  1889,  id.,  1168; 
Art.  Ill  of  convention  of  limits  between  France  and  Prussia,  Oct.  23,  1829, 
Brit,  and  For.  State  Pap.,  XVI,  907  ;  convention  between  Sweden  and  Noru-ay 
concerning -common  lakes  and  watercourses,  Oct.  26,  190.5,  Nouv.  Rec.  Gen., 
3  ser.,  XXXIV,  710,  quoted  in  Bonfils-Fauchille,  7  ed.,  p.  358. 

Cf.,  also,  MS.  Memorandum  by  William  C.  Dennis  on  "The  effect  of  a 
gradual  change  in  the  thalweg  of  the  Rio  Grande  caused  by  an  artificial  con- 
struction authorized  by  the  Governments  of  the  United  States  and  Mexico, 
upon  the  international  boundary  line  under  the  treaties  between  the  two 
countries." 

248 


ISLANDS  [I  139 

productive  of  changes  in  the  thalweg  where  the  stream  forms  the 
boundary  between  other  States,  or  serves  to  impair  the  value  of 
their  rights  of  navigation.  Obviously  the  lawfulness  of  such  con- 
duct depends  upon  the  consent  of  all  concerned.^ 

If  a  non-navigable  river  constitutes  an  international  boundary, 
it  appears  to  be  accepted  doctrine  that  the  dividing  line  follows 
the  middle  of  the  stream.^ 

(iii) 
§  139.   Islands. 

Islands  existing  or  arising  within  a  boundary  river  belong  to  the 
domain  of  the  State  on  whose  side  of  the  thalweg  or  middle  line  (in 
case  the  stream  is  not  navigable)  they  may  be  located.^  If  an 
island  arises  in  the  middle  of  a  non-navigable  stream  the  frontier, 
in  the  absence  of  special  agreement,  doubtless  follows  an  imaginary 
line  drawn  through  the  middle  of  the  newly  formed  land.  If, 
however,  the  river  is  navigable,  as  the  boundary  is  indicated  by  the 
principal  channel,  the  island  necessarily  comes  into  existence  on 
one  side  or  the  other  thereof,  and  hence  should  belong  exclusively 
to  one  riparian  proprietor.^  Division  of  the  island  might,  however, 
be  fairly  claimed  if  its  formation  was  sudden  and  perceptible. 

If  by  slow  and  imperceptible  change  of  the  thalweg  the  boundary 
is  altered  in  such  a  way  as  to  separate  an  island  from  the  State  to 
which  it  may  have  belonged,  the  right  of  ownership  of  the  latter 
is  not  lost.  This  fact  has  been  frequently  recognized  in  European 
treaties.^  The  right  of  sovereignty  is,  however,  believed  to  change 
with  the  alterations  of  the  thalweg.  Thus  the  former  sovereign, 
although  retaining  its  title,  would  appear  to  lose  the  right  of 
supreme  control.^ 

*  This  is  recognized  in  the  rules  respecting  the  International  Regulation  o^ 
the  Use  of  International  Streams  adopted  by  the  Institute  of  International 
Law  at  Madrid  in  1911.  Annuaire,  XXIV,  365,  J.  B.  Scott,  Resolutions,  168, 
169. 

2  Hall,  Higgins'  7  ed.,  §  38. 

^  Such  is  the  common  provision  of  boundary  conventions  which  refer  to  the 
matter.  See,  for  example,  Art.  IV  of  treaty  between  the  Argentine  Repubhc 
and  Brazil,  Oct.  6,  1898,  Brit,  and  For.  State  Pap.,  XC,  85 ;  agreement  between 
Great  Britain  and  Portugal,  Nov.  6-30,  1911,  respecting  the  boundary  on  the 
Ruo  and  Shire  Rivers,  id.,  CIV,  194. 

Cf.,  also,  Rivier,  Int.  Law,  I,  168. 

4  Blatchford,  J.,  in  St.  Louis  v.  Rutz,  138  U.  S.  226,  249. 

*  See,  for  example,  definitive  treaty  of  peace  between  the  Allies  and  France 
of  May  30,  1814,  Brit,  and  For.  State  Pap..  I,  Pt.  I,  156 ;  also  statement  of  E. 
Nys  concerning  the  treaties,  1801-1840,  aflfecting  islands  in  the  Rhine,  in  his 
Droit  International,  2  ed.,  I,  430-435 ;  also  St.  Louis  v.  Rutz,  138  U.  S.  226,  250. 

^  This  principle  is  well  expressed  by  Fiore  (French  translation  by  Antoine), 
II,  §  781  and  note.     Compare  Rivier,  I,  168. 

249 


§  140]     GENERAL   RIGHTS   OF  PROPERTY  AND   CONTROL 

(iv) 
§  140.    Bridges. 

According  to  European  treaties  of  the  nineteenth  century,  the 
frontier  on  a  bridge  crossing  a  river  forming  an  international 
boundary  was  fixed  at  the  middle  point  of  the  structure.^  This 
may  have  been  a  natural  consequence  of  the  early  doctrine  which 
referred  to  the  middle  rather  than  the  principal  channel  of  a 
navigable  river  as  indicative  of  the  boundary.  The  requirements 
which  led  to  the  adoption  of  the  thalweg  as  the  mode  of  establish- 
ing a  frontier  bore  no  relation  to  bridges.  The  latter  continued 
to  be  built  and  maintained  at  the  equal  expense  of  the  riverain 
States  whose  territories  were  thus  connected.  The  middle  point 
of  such  structures  continued  also  to  mark  the  true  division  of 
rights  of  sovereignty  as  well  as  of  ownership.  As  these  related 
to  what  was  affected  but  slightly  by  alterations  of  the  courses  of 
the  rivers  spanned,  riverain  States  appeared  to  agree  that  the 
frontier  respecting  bridges  should  not  vary  with  changes  of  the 
thalweg.  The  boundary  conventions  which  expressly  or  by  im- 
plication refer  to  the  matter  seem  to  recognize  this  principle.^ 

If  the  frontier  with  respect  to  a  bridge  over  a  boundary  river  is 
to  be  fixed  from  the  time  of  construction,  it  would  be  most  reason- 
able to  make  the  division  of  rights  of  sovereignty  coincide  with 
the  line  of  demarcation  then  recognized  in  the  river  itself.  Thus, 
when  the  latter  is  the  thalweg,  it  is  believed  that  the  point  where 

1  Treaty  of  Luneville  of  Feb.  9,  1801,  between  France  and  the  Empire,  De 
Clercq,  Traites,  I,  425 ;  treaty  between  Baden  and  Argovie  of  Sept.  17,  1808, 
Nouv.  Rec,  1, 140  ;  Art.  Ill  of  Treaty  of  Peace  of  Paris,  Nov.  20,  1815,  Brit,  and 
For.  State  Pap.,  Ill,  280,  285 ;  decree  promulgating  treaty  of  limits  between 
France  and  Spain  of  Dec.  2,  1856,  Brit,  and  For.  State  Pap.,  XLVII,  765  ;  final 
act  of  delimitation  of  boundary  respecting  Sardinia,  Austria  and  France  of 
Nov.  10,  1859,  Brit,  and  For.  State  Pap.,  LIII,  943 ;  declaration  of  Jan.  26, 
1861,  respecting  the  hmit  of  sovereignty  over  bridges  of  the  Rhine,  between 
France  and  Baden,  De  Clercq,  Traites,  YIll,  160;  final  act  of  delimitation  of 
boundary  between  Austria  and  Italy,  Dec.  22,  1867,  Brit,  and  For.  State  Pap., 
LXIII,  840 ;  final  act  of  the  powers  fixing  the  Turco-Greek  frontier,  Nov.  27, 
1881,  Brit,  and  For.  State  Pap.,  LXXII,  738;  E.  Nys,  Le  Droit  International, 
2  ed.,  I,  437;  Rivier,  I,  168;   G.  UUmann,  Volkerrecht,  2  ed.,  §  30. 

*  Thus  in  the  declaration  of  Jan.  21,  1861,  respecting  the  Hmits  of  sov- 
ereignty over  bridges  of  the  Rhine  between  France  and  Baden,  it  was  de- 
clared : 

"1.  The  middle  of  the  fixed  bridge  over  the  Rhine  between  Strasbourg  and 
Kehl  shall  be  regarded  as  the  limit  of  sovereignty  between  France  and  the 
Grand  Duchy  of  Baden. 

"2.  The  same  principle  shall  be  adopted  hereafter  respecting  the  bridge  of 
boats  between  Strasbourg  and  Kehl,  as  well  as  for  all  the  bridges  which  shall 
be  constructed  in  the  future  between  France  and  the  Grand  Duchy  of  Baden. 

"3.  These  provisions  are  independent  of  the  limit  of  the  waters,  and  shall 
be  without  prejudice  as  to  that  limit,  such  as  is  established  annually,  according 
to  the  thalweg  of  the  Rhine."     De  Clercq,  Traites,  VIII,  160. 

250 


MARGINAL  SEAS  [§141 

the  line  of  the  principal  channel  intersects  the  bridge  should  desig- 
nate the  frontier,  and  the  division  thus  indicated  be  given  perma- 
nent recognition.^ 

(d) 
Marginal  Seas 

(i) 
§  141.   Relation  to  Territorial  Sovereign  of  Adjacent  Land. 

At  the  time  when  the  United  States  came  into  being,  mari- 
time powers  were  fast  relinquishing  exorbitant  pretensions  to 
rights  of  control  over  wide  areas  of  the  sea  contiguous  to  land 
constituting  the  national  domain.^     Such  claims  although  based 

*  Such  was  the  pohcy  of  the  United  States  and  Mexico,  expressed  in  the 
boundary  convention  of  Nov.  12,  1884,  respecting  the  Rio  Grande  and  the  Rio 
Colorado,  Art.  IV  of  which  provided  that  "If  any  international  bridge  have 
been  or  shall  be  built  across  either  of  the  rivers  named,  the  point  on  such  bridge 
exactly  over  the  middle  of  the  main  channel  as  herein  determined  shall  be 
marked  by  a  suitable  monument,  which  shall  denote  the  dividing  line  for  all 
the  purposes  of  such  bridge,  notwithstanding  any  change  in  the  channel  which 
may  thereafter  supervene.  But  any  rights  other  than  in  the  bridge  itself 
and  in  the  ground  on  which  it  is  built  shall  in  event  of  any  such  subsequent 
change  be  determined  in  accordance  with  the  general  provisions  of  this  con- 
vention."    Malloy's  Treaties,  I,  1159,  1160. 

^  See,  generally.  The  Extent  of  the  Marginal  Sea,  a  collection  of  official 
documents  and  views  of  representative  pubUcists,  prepared  by  Henry  G. 
Crocker,  Dept.  of  State,  1919;  Hugo  D.  Barbagelata,  Frontieres,  Paris,  1911 ; 
T.  W.  Fulton,  Sovereignty  of  the  Sea,  Edinburgh,  1911,  Section  II;  Paul 
Godey,  La  Mer  Cotiere,  Paris,  1896  ;  Joseph  Imbart^de  Latoiu-,  La  Mer  Terri- 
toriale,  Paris,  1889  ;  A.  de  Lapradelle,  "Le  droit  de  VEtat  sur  la  mer  territoriale" , 
Rev.  Gen.,  V,  264  and  309;  Reinhard  Leistikow,  Die  Rechtslage  in^den  Kils- 
tengewdssern,  Greifswald,  1913 ;  Antoine  Nuger,  Des  Droits  de  VEtat  sur  la 
Mer  Territoriale,  Paris,  1887 ;  Ferdinand  Perels,  Das  Internationale  offentliche 
Seerecht  der  Gegenwart,  Berlin,  1903 ;  Arnold  Raestad,  La  Mer  Territoriale, 
Paris,  1913 ;  Walther  Schiicking,  Das  Kiistenmeer  im  internationalen  Rechte, 
Gottingen,  1897 ;  Romee  de  Villeneuve,  De  la  Determination  de  la  Ligne 
Separative  des  Eaux  Nationales  et  de  la  Mer  Territoriale  (with  bibliography), 
Paris,  1914 ;  Lodewijk  Ernst  Visser,  De  Territoriale  Zee,  Amersfoort,  1894. 
Also  Moore,  Dig.,  I,  698-735,  and  documents  there  cited ;  Naval  War  College, 
Int.  Law  Topics,  1913,  11-35;  Bonfils-Fauchille,  7  ed.,  §§490-494,  with 
bibliography;  Calvo,  5  ed.,  477-480;  Rivier,  I,  145-150;  Pradier-Fodere, 
II,  147-148;  HaU,  Higgins'  7  ed.,  §§  40-41;  Oppenheim,  2  ed.,  I,  §§  185- 
187;  Westlake,  2  ed.,  I,  187-191;  Dana's  Wheaton,  §§  178-179;  Dana's 
Note,  id..  No.  105;  Woolsey,  6  ed.,  76-77. 

See,  also.  Report  of  Sir  Thomas  Barclay  to  the  Institute  of  International 
Law,  Aug.  6,  1892,  Annuaire,  XII,  104;  Rules  on  the  Definition  and  Regime 
of  the  Territorial  Sea,  adopted  by  the  Institute  of  International  Law,  1894, 
id.,  XIII,  328,  J.  B.  Scott,  Resolutions,  113;  "La  Limite  de  la  Mer  Terri- 
toriale" (Source  — R.  de  Ryckere),  Clunet,  XLIV,  921;  Sir  J.  W.  Salmond, 
"Territorial  Waters",  Law  Quar.  Rev.,  XXXIV,  235. 

Instructions  of  American  plenipotentiaries  for  negotiating  a  treaty  of  Com- 
merce with  Great  Britain,  Aug.  14,  1779,  Secret  Journals  of  Congress,  II,  229, 
Snow,  Topics  on  American  Diplomacy,  55 ;  Report  of  Committee  of  Congress, 
Aug.  16,    1782,  Secret  Journals  of  Congress,  III,  161,  Snow,  id.,  57,  59,  in 

251 


§  141]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

upon  a  variety  of  considerations,  had  commonly  been  partially 
attributable  to  the  theory  that  the  waters  over  which  rights  of 
sovereignty  were  asserted,  by  reason  of  what  took  place  within 
them,  bore  such  a  relation  to  the  nearest  land  as  to  be  regarded  as 
appurtenant  to  it.^  To  defend  it  from  attack,  to  protect  com- 
merce entering  and  leaving  its  ports,  to  safeguard  the  fisheries 
along  its  borders,  and  to  insure  respect  for  the  flag  of  its  territorial 
sovereign  had  been  decisive  influences.  With  the  advent  of  the 
nineteenth  century  it  came  to  be  understood  that  a  State  was 
capable  of  substantially  occupying  a  narrow  rim  of  the  sea  adjacent 
to  its  ocean  coasts,  and  of  dealing  with  it,  for  most  purposes,  as 
though  it  were  a  part  of  the  national  domain.^  It  was,  therefore, 
generally  recognized  as  advantageous  to  the  international  society, 
that  each  of  its  maritime  members  should  exercise  a  right  of  control 
over  such  marginal  sea  within  certain  definite  limits,  and  treat  it 
for  most  purposes  as  a  part  of  its  territory.  The  international 
interest,  although  conserved  by  such  action  on  the  part  of  the  in- 
dividual State,  was,  however,  also  solicitous  that  the  extent  of  the 
water  area  be  narrowly  limited  and  sharply  defined.  Thus  it  was 
not  the  extent  or  width  of  the  marginal  sea  which  an  adjacent 
State  was  capable  of  occupying,  but  rather  the  amount  which  it 
could  occupy  without  obvious  detriment  to  the  society  of  nations 
as  a  whole,  which  was,  and  yet  remains,  an  object  of  concern. 

Bynkershoek  had,  in  1703,  declared  that  the  extent  of  the  area 
should  be  measured  by  the  power  of  a  State  to  control  it  from  the 

the  course  of  which  it  was  said  :  "Thus  it  appears,  upon  strict  principles  of 
natural  law,  that  the  sea  is  unsusceptible  of  appropriation ;  that  a  species  of 
conventional  law  has  annexed  a  reasonable  district  of  it  to  the  coast  which 
borders  on  it ;  and  that  in  many  of  the  treaties  to  which  Great  Britain  has  ac- 
ceded, no  distance  has  been  assumed  for  this  purpose  beyond  fourteen  miles." 

^  Thus  in  the  course  of  the  award  of  the  arbitral  tribunal  at  the  Hague, 
under  convention  of  March  14,  1908,  between  Sweden  and  Norway,  to  settle 
certain  differences  relating  to  the  maritime  boundary  between  those  States, 
it  was  declared  that  by  the  fundamental  principles  of  the  law  of  nations,  both 
ancient  and  modem,  "Maritime  territory  is  a  necessary  appurtenance  of  the 
land  territory."     Wilson,  Hague  Arbitration  Cases,  103,  121. 

2  Declares  Hall :  "  The  true  key  to  the  development  of  the  law  is  to  be  sought 
in  the  principle  that  maritime  occupation  must  be  effective  in  order  to  be 
valid.  This  principle  may  be  taken  as  the  formal  expression  of  the  results 
of  the  last  two  hundred  and  fifty  years,  and  when  coupled  with  the  rule  that 
the  proprietor  of  territorial  waters  may  not  deny  their  navigation  to  foreigners, 
it  reconciles  the  interests  of  a  particular  State  with  those  of  the  body  of  States." 
Higgins'  7  ed.,  40. 

"The  maritime  belt  is  that  part  of  the  sea  which,  in  contradistinction  to 
the  open  sea,  is  under  the  sway  of  the  riparian  States,  which  can  exclusively 
reserve  the  fishery  within  their  respective  maritime  belts  for  their  own  citizens, 
whether  fish,  or  pearls,  or  amber,  or  other  products  of  the  sea.  See  Manchester 
V.  Massachusetts,  139  U.  S.  240  ;  McCready  v.  Virginia,  94  U.  S.  391."  Fuller, 
C.  J.,  in  Louisiana  v.  Mississippi,  202  U.  S.  1,  52. 

252 


POSITION  OF  THE  UNITED  STATES  [§  142 

land,  and  that  the  test  of  that  power  was  the  range  of  a  cannon, 
then  regarded  as  three  marine  miles,  or  one  marine  league.^  Hence, 
that  distance,  as  Westlake  has  declared,  "measured  from  low- 
water  mark,  became  a  commonplace  among  authors  for  the  width 
of  the  littoral  sea."  ^  ^Moreover,  statesmen  accepted  the  limit 
thus  laid  down,  and  continued  to  do  so  long  after  the  theory  on 
which  it  had  been  based  became  inapplicable ;  ^  for  the  constantly 
increasing  range  of  heavy  guns  could  afford  no  stable  test,  nor 
serve  automatically  to  extend  a  limit  which  needed  to  be  definite 
and  constant. 

(ii) 

§  142.   Position  of  the  United  States. 

Mr.  Jefferson,  as  Secretary  of  State,  announced  in  1793,  that 
the  President,  reserving  for  future  deliberation  the  "  ultimate  ex- 
tent" which  might  be  claimed  as  territorial  waters  of  the  United 
States,  saw  fit  to  adhere  to  instructions  already  given  to  officers 
under  his  authority  to  consider  "for  the  present"  the  distance  as 
limited  to  "one  sea  league  or  three  geographical  miles  from  the 
seashore."  ^ 

The  United  States  during  the  nineteenth  century  protested 
against  the  occasional  efforts  of  certain  other  States  to  exercise 
rights  of  sovereignty  over  a  broader  area.  With  Great  Britain 
it  successfully  opposed  the  attempt  of  Russia,  announced  in  the 
Ukase  of  September  4,  1821,  to  prohibit  foreign  vessels  from  ap- 
proaching within  a  hundred  Italian  miles  of  Russian  possessions 
in  the  Pacific  Ocean  north  of  the  45th  degree  of  latitude  on  the 
coast  of  Asia,  and  of  the  51st  degree  on  the  coast  of  America.^ 

1  "  Bj^nkershoek's  argument  is  in  the  dissertation  De  Dominio  Maris,  but 
the  maxim,  in  the  terse  form  quoted  in  the  text  [Imperium  terrae  finiri  ubi 
finituT  annorum  potestaa],  occurs  in  the  QiuBstiones  Juris  Puhlici,  L.  1,  c.  8." 
Westlake,  2  ed.,  I,  188,  note.  It  may  be  observed  that  the  Dissertatio  de 
Dominio  Maris  was  pubhshed  in  1703,  and  the  Qucestiones  Juris  Puhlici  in 
1737.  See  O.  W.  S.  Numan,  CorneUs  Van  Bynkershoek,  Zijn  Leven  En  Zijne 
Geschriften,  Leiden,  1869,  470. 

2  Int.  Law,  188-189. 

3  Preamble  of  Rules  on  the  Definition  and  Regime  of  the  Territorial  Sea, 
adopted  by  the  Institute  of  International  Law,  1894,  Annvuire,  XIII,  328, 
J.  B.  Scott,  Resolutions,  113. 

*  Mr.  Jefferson,  Secy,  of  State,  to  Mr.  Hammond,  British  Minister,  Nov.  8, 
1793,  British  Counter  Case  and  Papers,  Geneva  Arbitration,  American  reprint, 
553,  Moore,  Dig.,  I,  702 ;  also  Mr.  Pickering,  Secy,  of  State,  to  the  Lieut. 
Governor  of  Virginia,  Sept.  2,  1796,  9  MS.  Dom.  Let.  281,  Moore,  Dig.,  I,  704. 

*  See  documents  in  American  State  Pap.,  For.  Rel.,  V,  432-^71.  Also 
Award  in  the  Fur  Seal  Arbitration.  Aug.  15,  1893,  Proceedings,  Fur  Seal  Ar- 
bitration, I,  77;  Case  of  Great  Britain,  Proceedings,  Alaskan  Boundary 
Tribunal,  III.  14  ;  treaty  between  the  United  States  and  Russia,  April  17,  1824, 
Malloy's  Treaties,  II,  1512. 

253 


§  142]     GENERAL   RIGHTS    OF    PROPERTY   AND    CONTROL 

In  1862,  Spain  asserted  the  right  to  regard  as  the  territorial 
waters  of  Cuba,  the  waters  surrounding  that  island  to  a  distance 
of  six  marine  miles  therefrom,  on  the  ground  that  such  an  area 
was  within  the  range  of  a  cannon  from  the  shore,  which  was  said 
to  be  the  true  test  of  the  seaward  limits  of  the  Spanish  domain. 
Secretary  Seward  made  objection.  He  declared  that  the  extent 
of  the  territorial  waters  of  a  State  was  not  to  be  derived  from  its 
own  decrees  or  legislative  enactments,  but  from  the  law  of  nations, 
and  that  according  to  that  law  the  limit  was  fixed  at  three  marine 
miles  from  the  coast.^ 

The  United  States  appears  generally  to  have  taken  a  position 
in  harmony  with  these  views,  at  least  with  respect  to  the  extent 
of  territorial  waters  on  the  American  continents.^     In  so  doing 

1  Mr.  Seward,  Secy,  of  State,  to  Mr.  Tassara,  Spanish  Minister,  Dec.  16, 
1862,  MS.  Notes  to  Spain,  VII,  331,  Moore,  Dig.,  I,  706-707,  where  it  was 
said  :  "This  limit  was  early  proposed  by  the  pubUcists  of  all  maritime  nations. 
While  it  is  not  insisted  that  all  nations  have  accepted  or  acquiesced  and  bound 
themselves  to  abide  by  this  rule  when  applied  to  themselves,  yet  three  points 
involved  in  the  subject  are  insisted  upon  by  the  United  States :  First,  that  this 
limit  has  been  generally  recognized  by  nations  ;  second,  that  no  other  general 
rule  has  been  accepted ;  and  third,  that  if  any  State  has  succeeded  in  fixing 
for  itself  a  larger  Umit,  this  has  been  done  by  the  exercise  of  maritime  power, 
and  constitutes  an  exception  to  the  general  understanding  which  fixes  the 
range  of  a  cannon  shot  (when  it  is  made  the  test  of  jurisdiction)  at  three  miles. 
So  generally  is  this  rule  accepted  that  writers  commonly  use  the  two  expressions, 
of  a  range  of  cannon  shot  and  three  rniles,  as  equivalents  of  each  other." 

2  "This  Government  has  uniformly,  under  every  administration  which  has 
had  occasion  to  consider  the  subject,  objected  to  the  pretension  of  Spain 
adverted  to,  upon  the  same  ground  and  in  similar  terms  to  those  contained 
in  the  instruction  of  the  Earl  of  Derby. 

"We  have  always  xmderstood  and  asserted  that,  pursuant  to  public  law, 
no  nation  can  rightfully  claim  jurisdiction  at  sea  beyond  a  marine  league  from 
its  coast."  Mr.  Fish,  Secy,  of  State,  to  Sir  Edward  Thornton,  British  Minister, 
Jan.  22,  1875,  For.  Rel.  1875,  I,  649,  Crocker's  Compilation,  664. 

See,  also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Boker,  Minister  to  Russia,  Dec.  1, 
1875,  MS.  Inst.  Russia,  XV,  536,  Moore,  Dig.,  I,  705 ;  Mr.  Seward,  Secy,  of 
State,  to  Mr.  Tassara,  Spanish  Minister,  Aug.  10,  1863,  MS.  Notes  to  Spanish 
Legation,  VII,  407,  Moore,  Dig.,  1,709.  Declared  Mr.  Bayard,  Secy,  of 
State,  in  the  course  of  a  communication  to  Mr.  Manning,  Secy,  of  the  Treas- 
ury, May  28,  1886:  "We  may  therefore  regard  it  as  settled  that,  so  far 
as  concerns  the  eastern  coast  of  North  America,  the  position  of  this  Depart- 
ment has  uniformly  been  that  the  sovereignty  of  the  shore  does  not,  so  far 
as  territorial  authority  is  concerned,  extend  beyond  three  miles  from  low- 
water  mark,  and  that  the  seaward  boundary  of  this  zone  of  territorial  waters 
follows  the  coast  of  the  mainland,  extending  where  there  are  islands  so  as  to 
place  round  such  islands  the  same  belt."  160  MS.  Dom.  Let.  348,  Moore, 
Dig.,  I,  718-720.  Cf.  Art.  II,  Stockton's  Naval  War  Code  of  1900  (withdrawn 
in  1904),  Naval  War  College,  Int.  Law  Discussions,  1903^,  103. 

In  the  course  of  the  arbitration  of  the  C.  H.  White  Cas*e,  Mr.  Pierce,  Agent 
of  the  United  States,  in  pursuance  of  authority  from  the  Secretary  of  State, 
made  a  declaration  to  the  effect  that  "The  Government  of  the  United  States 
claims,  neither  in  Bering  Sea,  nor  in  its  other  bordering  waters,  an  extent  of 
jurisdiction  greater  than  a  marine  league  from  its  shores,  but  bases  its  claims 
to  such  jurisdiction  upon  the  following  principle  : 

"The  Government  of  the  United  States  claims  and  admits  the  jurisdiction 
of  any  State  over  its  territorial  waters  only  to  the  extent  of  a  marine  league, 

254 


POSITION  OF  NORWAY  [§  143 

it  has  invoked  the  practice  of  maritime  States,  which,  in  its  judg- 
ment, has  failed  to  indicate  general  acquiescence  in  the  doctrine 
that  the  range  of  caimon  should  prescribe  the  test,  or  any  indefi- 
nite extension  of  the  traditional  limit. ^ 

In  1916,  when  the  United  States  was  a  neutral,  the  Department 
of  State,  although  expressing  regret  that  British  cruisers  should 
patrol  the  waters  adjacent  to  its  ocean  coast  in  close  proximity 
thereto,  and  requesting  a  cessation  of  such  action,  took  pains  to 
declare  that  it  advanced  no  claim  that  such  vessels  when  "  cruising 
off  American  ports  beyond  the  three-mile  limit"  were  not  in  so 
doing  "within  their  strict  legal  rights  under  international  law."  ^ 
In  the  discussion  which  took  place,  it  was  assumed  on  both  sides 
that  three  marine  miles  was  the  extent  of  the  territorial  waters 
of  the  United  States.^ 

§  143.   The  Same. 

It  may  be  observed  that  in  June,  1918,  the  Norwegian  Govern- 
ment, which  had  previously  claimed  that  the  territorial  waters 

unless  a  different  rule  is  fixed  by  treaty  between  two  States:  even  then  the 
treaty  States  are  alone  affected  by  the  agreement."  For.  Rel.  1902,  Appendix  I, 
440,  461,  Crocker's  Compilation,  680. 

Art.  IV  of  the  Suez  Canal  Convention  of  Oct.  29,  1888,  prohibited  the  com- 
mission of  hostilities  within  a  radius  of  three  marine  miles  of  the  ports  of  access 
to  the  Canal.  Moore,  Dig.,  Ill,  264,  Nouv.  Rec.  Gen.,  2  ser.,  XV,  560.  Cf.,  also, 
Section  5,  Art.  Ill,  of  the  Hay-Pauncefote  Treaty  of  Nov.  18,  1901,  to  facilitate 
the  construction  of  a  trans-Isthmian  ship  canal,  Malloy's  Treaties,  I,  782. 

According  to  Art.  V  of  the  Treaty  of  Guadalupe-Hidalgo,  concluded  with 
Mexico  Feb.  2,  1848,  Malloy's  Treaties,  I,  1110,  "The  boundary  line  between 
the  two  Republics  shall  commence  in  the  Gulf  of  Mexico,  three  leagues  from 
land,  opposite  the  mouth  of  the  Rio  Grande."  The  same  seaward  limit  was 
expressed  in  Art.  I  of  the  Gadsden  Treaty  of  Dec.  30,  18.53,  id.,  1122.  In  later 
years,  in  correspondence  with  Great  Britain,  the  Department  of  State  appeared 
to  take  the  stand  that  this  provision  was  solely  applicable  to  the  rights  of  the 
contracting  parties,  and  did  not  necessarily  imply  more,  or  amount  to  an 
abridgment  of  the  rights  of  other  States  under  the  law  of  nations.  Mr. 
Buchanan,  Secy,  of  State,  to  Mr.  Crampton,  British  Minister,  Aug.  19,  1848, 
MS.  Notes  to  Great  Britain,  VII,  185,  Moore,  Dig.,  I,  730 ;  Mr.  Fish,  Secy,  of 
State,  to  Sir  Edward  Thornton,  British  Minister,  Jan.  22,  1875,  For.  Rel.  1875, 
I,  649,  Moore,  Dig.,  I,  731.     See  Bolmer  v.  Edsall,  106  At.  (N.  J.  Ch.),  646. 

^  Compare,  however,  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Jordan,  Jan.  23, 
1849,  37  MS.  Dom.  Let.  98,  Moore,  Dig.,  I,  705 ;  also  dictum  of  Mr.  Martens 
in  his  award  as  Arbitrator  in  the  case  of  the  Costn  Rica  Packet  to  the  effect 
that  "the  right  of  sovereignty  of  the  State  over  territorial  waters  is  determined 
by  the  range  of  cannon  measured  from  the  low-water  mark."  Moore,  Arbi- 
trations, V,  4952.  Also  Arts.  XII  and  XIX  of  unconfirmed  convention  with 
Great  Britain,  of  Dec.  31,  1806,  Proceedings,  North  Atlantic  Coast  Fisheries 
Arbitration,  IV,  Appendix,  42,  Senate  Doc.  No.  870,  61  Cong.,  3  Sess. ;  Crock- 
er's Compilation,  642. 

2  Mr.  Lansing,  Secy,  of  State,  to  Sir  Cecil  Spring  Rice,  British  Ambassador 
at  Washington,  April  26,  1916,  American  White  Book,  European  War,  III, 
139,  140. 

^  See  documents,  id.,  131-141.  Unanchored  Mines,  The  Attitude  of  the 
United  States,  infra,  §  715. 

255 


§  143]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

of  Norway  extended  to  four  miles  from  the  shore,  announced  its 
recognition  of  the  difficulty  of  upholding  such  a  claim  during  the 
existing  war,  since  it  was  "not  recognized  by  either  the  British 
or  German  Governments."  Accordingly  it  was  intimated  to  the 
British  Government  on  May  3,  1918,  that  Norwegian  naval  officers 
had  been  instructed  to  confine  their  efforts  to  maintain  the  neu- 
trality of  the  waters  within  the  three-mile  limit,  and  not  to  fire 
on  belligerent  ships  operating  outside  of  it.^ 

Since  its  earliest  treaty  with  Great  Britain,  the  United  States 
seems  to  have  been  generally  unwilling  to  admit  that  the  presence 
of  valuable  fisheries  bordering  the  ocean  coast  of  a  State  and  more 
than  three  marine  miles  distant  therefrom,  served  to  extend  the 
limits  of  its  territorial  waters.^    The  chief  problefn,  however,  in 

1  Norwegian  Regulations  defining  territorial  waters  and  treatment  of 
belligerent  submarines,  of  June  18,  1918,  Naval  War  College,  Int.  Law  Docu- 
ments, 1918,  118.  Also  Art.  I  of  Neutrality  Regulations  of  Morocco,  July  18, 
1917,  id.,  116.  Compare  Art.  I  of  Italian  decree  of  Aug.  6,  1914,  relating  to  the 
extent  of  jurisdictional  waters,  in  regard  to  neutral  rights  and  duties  conven- 
tionally assumed,  and  declaring  that  "by  territorial  waters  is  understood  the 
zone  of  water  included  between  the  coast  line  and  a  line  6  nautical  miles 
(11,111  meters)  due  seaward  of  the  said  coast  line",  id.,  100.  On  March  5, 
1915,  the  Swedish  Minister  at  Washington  announced  to  the  Department  of 
State  that  "according  to  a  long  tradition,  the  territorial  waters  of  Sweden 
extend  4  nautical  miles  (4  minutes  or  7,420  meters)  from  the  coast  or  from  the 
furthest  outlying  islets  or  skerries,  which  are  not  continually  washed  over  by 
the  sea."    Id.,  153. 

*  "No  general  disposition  has  been  manifested  in  recent  years  to  restrict 
the  right  of  all  nations  to  take  fish  in  the  open  sea.  The  three-mile  rule,  which 
defines  the  exclusive  right  of  fishery  on  the  Canadian  coasts  under  the  con- 
vention between  the  United  States  and  Great  Britain  of  1818,  may  also  be 
found  in  the  convention  of  1882  between  Belgium,  Denmark,  France,  Ger- 
many, and  Great  Britain  for  the  regulation  of  the  fisheries  in  the  North  Sea. 
The  same  rule  is  embodied  in  conventions  between  France  and  Great  Britain 
of  1839  and  1843  for  the  regulation  of  the  fisheries  in  the  channel.  It  is  also 
found  in  a  law  passed  by  the  French  legislature  in  1885  for  the  exclusion  of 
foreigners  from  fishing  in  the  territorial  waters  of  France  and  Algiers."  Moore, 
Dig.,  I,  716. 

See  Mr.  Fish,  Secy,  of  State,  to  Mr.  Boker,  Minister  to  Russia,  Dec.  1,  1875, 
MS.  Inst.  Russia,  XV,  536,  Moore,  Dig.,  I,  717 ;  Mr.  John  Davis,  Asst.  Secy, 
of  State,  to  Mr.  Osborn,  Feb.  14,  1884,  150  MS.  Dom.  Let.  6,  Moore,  Dig.,  I, 
718;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Manning,  Secy,  of  the  Treasury, 
May  28,  1886,  160  MS.  Dom.  Let.  348,  Moore,  Dig.,  I,  718.  Compare  claims 
of  Norway  over  adjacent  fisheries  described  in  paper  of  Mr.  G.  Gram,  one  of 
the  Arbitrators  of  the  Fur  Seal  Arbitration,  Moore,  Arbitrations,  I,  920,  note. 

Concerning  the  pearl  fisheries  protected  by  Great  Britain  off  the  coast  of 
Ceylon,  see  Westlake,  2  ed.,  I,  190-191,  203  ;  also  Oppenheim,  2  ed.,  I,  p.  348, 
note  2. 

A  State  may  in  fact  attempt  to  regulate  fishing  on  the  high  seas.  It  maj' 
contract  with  other  States  whose  nationals  with  its  own  are  interested  in 
fishing  within  certain  areas  thereof,  and  that  with  a  view  to  regulating  or  check- 
ing the  industry.  See,  for  example,  convention  concluded  by  the  United 
States,  Great  Britain,  Russia  and  Japan,  July  7,  1911,  for  the  preservation 
and  protection  of  fur  seals  frequenting  the  waters  of  the  North  Pacific  Ocean, 
Charles'  Treaties,  84.  Cf.,  also,  in  this  connection,  Oppenheim,  2  ed.,  I, 
§§  281-285. 

256 


PROPOSED  EXTENSION  OF  LIMIT  [§  145 

relation  to  the  fisheries  on  the  North  Atlantic  coast  has  concerned 
the  extent  of  bays  within  which  exclusive  fishery  rights  might  be 
exercised  by  the  territorial  sovereign,  rather  than  the  limits  of 
the  marginal  sea  within  which  they  might  be  so  enjoyed.^ 


(iii) 

§  144.     Certain  Acts  Not  Assertive  of  Territorial  Claims. 

It  is  believed  to  be  important  to  observe  that  a  State  may  en-^ 
deavor  to  prevent,  in  times  of  peace  or  war,  the  commission  of 
certain  acts  by  foreign  ships  or  the  occupants  thereof,  at  a  dis- 
tance of  more  than  three  marine  miles  from  its  coast,  without 
claiming  that  the  place  where  they  occur  is  a  part  of  its  domain. 
This  is  true  in  the  case  of  so-called  hovering  laws,  designed  to  pre- 
vent smuggling  by  interference  outside  of  territorial  waters  with 
foreign  vessels  about  to  enter  them  for  an  illegal  purpose.^  It  is 
apparent  also  when  a  neutral  State  merely  seeks  to  check  tlie  com- 
mission of  hostile  acts  in  dangerous  proximity  to  its  shores  although 
more  than  three  marine  miles  therefrom,^  or  when  a  belligerent 
undertakes  to  establish  a  defensive  sea  area  off  its  ocean  coast. ^ 
Such  measures  of  prevention,  which  are  taken  with  a  view  to 
safeguarding  the  national  domain,  are  not  indicative  of  the  extent 
of  the  territorial  limits  of  the  State  which  has  recourse  to  them. 

(iv) 

§  145.   Proposed  Extension  of  Existing  Limit. 

There  has  been  a  disposition  on  the  part  of  publicists  of  dis- 
tinction to  advocate  an  extension  of  three  marine  miles  as  the 

'   Bays,  The  North  Atlantic  Coast  Fisheries  Arbitration,  infra,  §  147. 

^  See  the  British  Hovering  Act  of  1736  (9  Geo.  II,  35),  Moore,  Dig.,  I,  725 ; 
also  Act  of  Congress  of  March  2,  1799,  Sees.  26  and  27,  1  Stat.  647  and  648. 
Cf.  Jurisdiction,  The  High  Seas,  Revenue  or  Hovering  Laws,  infra,  §  235. 

^  See,  for  example,  the  effort  of  France  in  1864  to  prevent  the  engagement 
between  the  Kearsarge  and  the  Alabama  at  a  distance  within  such  proximity 
to  the  French  coast,  although  more  than  three  marine  miles  therefrom,  as 
would  "be  offensive  to  the  dignity  of  France."  Dip.  Cor.  1864,  III,  104-121, 
Moore,  Dig.,  I,  723-724.  Also,  in  this  connection,  Mr.  Bayard,  Secy,  of  State, 
to  Mr.  Manning,  Secy,  of  the  Treasury,  May  28,  1886,  160  MS.  Dom.  Let. 
348,  Moore,  Dig.,  I,  718-721. 

*  Concerning  the  defensive  sea  areas  established  by  the  United  States  in 
1917  and  1918,  see  Access  to  Ports,  infra,  §  187. 

It  may  be  observed  that  the  outer  limit  of  the  defensive  sea  area  established 
by  the  executive  order  of  April  5,  1917,  with  respect  to  the  entrance  to  Chesa- 
peake Bay,  was  a  "line  parallel  to  that  joining  Cape  Henry  Light  and  Cape 
Charles  Light  and  four  nautical  miles  to  eastward  thereof,  and  the  lines  from 
Cape  Charles  Light  and  from  Cape  Henry  Light  perpendicular  to  this  line." 

VOL.  I  —  9  257 


§  145]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

limit  of  territorial  waters.^  The  ease  with  which  a  State  may 
occupy  an  area  far  beyond  such  a  distance  from  its  ocean  coasts, 
the  advantages  accruing  to  it  from  such  occupation,  as  well  as 
the  frequent  attempts  to  assert  various  forms  of  control  over  a 
wider  zone,  may  be  in  fact  relied  upon  as  grounds  justifying  a 
change.  It  should  be  observed,  however,  that  in  judging  of  the 
reasonableness  of  any  particular  extension,  the  general  interest 
of  the  society  of  nations  must  be  given  precedence  over  the  claims 
of  the  individual  State,  and  that  the  measure  of  its  power  to  occupy 
effectively  a  wide  expanse  of  the  sea  must  be  subordinated  to  those 
geographical  and  economic  considerations  which  still  render  it 
generally  beneficial  to  the  society  of  nations  that  no  one  of  its 
members  become  the  territorial  sovereign  over  a  broad  tract  of 
the  ocean.  In  balancing  these  opposing  equities,  the  significant 
fact  is  that  as  an  incident  of  The  World  War,  the  interests  of 
that  society  are  more  clearly  perceived  than  heretofore,  and,  in 
consequence,  the  relative  value  of  them  newly  and  amply  appraised. 

(e) 
Bays 

(i) 
§  146.   The  General  Principle.     Certain  Applications. 

The  individual  State  has  in  practice  enjoyed  much  latitude  in 
determining  what  baj^s  or  arms  of  the  sea  penetrating  its  territory 
may  be  regarded  as  a  part  of  the  national  domain  and  dealt  with 
accordingly.^  This  is  partly  due  to  the  fact  that  a  bay  of  wide 
expanse,  the  entrance  to  which  is  far  more  than  six  marine  miles 

1  According  to  Art.  II  of  the  Rules  on  the  Definition  and  Regime  of  the 
Territorial  Sea,  adopted  by  the  Institute  of  International  Law  in  1894  :  "The 
territorial  sea  extends  six  marine  miles  (60  to  a  degree  of  latitude)  from  the 
low-water  mark  along  the  full  extent  of  the  coasts."  Annuaire,  XIII,  329, 
J.  B.  Scott,  Resolutions,  114,  Moore,  Dig.,  I,  734.  Also  Report  of  Sir  Thomas 
Barclay,  with  draft  of  proposal,  to  the  Institute  of  International  Law,  1912, 
Annuaire,  XXV,  375  ;  Report  of  Prof.  Oppenheim,  to  the  Institute,  1913,  id., 
XXVI,  403.  See,  also,  conclusions  of  Naval  War  College  in  1913,  Naval  War 
College,  Int.  Law  Topics,  1913,  34. 

See  Mr.  Olney,  Secv.  of  State,  to  Mr.  de  Weckherhn,  Dutch  Minister  at 
Washington,  Feb.  15,  1896,  MS.  Notes  to  the  Netherlands,  VIII,  359,  Moore, 
Dig.,  I,  734. 

2  See,  generally,  documents  in  Moore,  Dig.,  I,  735-743  ;  Naval  War  College, 
Int.  Law  Situations,  1904.  138-140;  id.,  Int.  Law  Topics,  1913,  35-42,  46-47; 
Proceedings  of  Alaskan  Boundary  Tribunal,  Counter  Case  of  Great  Britain, 
Vol.  IV,  Part  3,  24-30 ;  Territorial  Waters  Brief  of  Great  Britain,  Documents 
and  Proceedings  of  Halifax  Commission,  II,  1887-1906,  Moore,  Arbitrations, 
I,  744,  Moore,  Dig.,  I,  806.  Compare,  Brief  of  the  United  States,  Proceedings, 
Halifax  Commission,  I,  119-167,  Moore,  Arbitrations,  I,  743,  Moore,  Dig., 
I,  806 ;  Report  of  Mr.  Edmunds  from  Senate  Committee  on  Foreign  Relations, 

258 


THE   GENERAL  PRINCIPLE  [§  146 

in  extent,  may  still  be  subjected  to  control  and  practically  occupied 
by  the  territorial  sovereign  of  the  surrounding  land,  and  that  with- 
out interference  with  any  channel  of  communication  between  States 
generally,  or  with  any  other  definite  interest  of  the  society  of  na- 
tions.^ It  may  be  doubted  whether  international  law  has  as  yet 
limited  with  precision  the  dimensions  of  bays  which  may  be  fairly 
deemed  by  the  individual  State  to  constitute  its  territorial  waters. 
Delaware  Bay,  some  ten  marine  miles  wide  at  its  entrance,  and 
forty  miles  in  length  from  its  entrance  to  the  Delaware  River  (as 
measured  in  a  straight  line  to  Liston  Point),  was  in  1793,  regarded 
by  Attorney-General  Randolph  as  an  American  bay.^  In  his 
opinion,  the  seizure  within  its  waters  of  the  British  ship  Grange 
by  a  French  vessel  of  war  was  an  illegal  act  within  neutral  terri- 
tory.'' Some  years  later,  Chesapeake  Bay,  nine  and  a  half  nau- 
tical miles  wide  at  its  entrance  (as  measured  between  Cape  Henry 
and  The  Isaacs),  and  one  hundred  and  seventy  miles  in  length 
to  the  mouth  of  the  Susquehanna  River  (following  mid-channel), 
was  regarded  by  the  Court  of  Commissioners  of  Alabama  Claims 
in  the  case  of  the  AUeganean,  as  within  the  territorial  waters  of  the 
United  States.     In  the  course  of  its  opinion  the  Court  said  : 

Considering,  therefore,  the  importance  of  the  question,  the 
configuration  of  Chesapeake  Bay,  the  fact  that  its  headlands 

Jan.  19,  1887,  Sen.  Rep.  No.  1683,  Reports  of  Senate  Committee  on  Foreign 
Relations,  V,  615,  619. 

See  A.  H.  Charteris,  "Territorial  Jurisdiction  in  Wide  Bays",  Yale  Law 
Journal,  XVI,  471 ;  Int.  Law  Association,  23d  Report,  Berlin  Conference 
(1906),  103;  Charles  Noble  Gregory,  "The  Recent  Controversy  as  to  the 
British  Jurisdiction  over  Foreign  Fishermen  More  Than  Three  Miles  from 
Shore",  Am.  Pol.  Sc.  Rev.,  I,  410;  "Territorial  Jurisdiction  in  Wide  Bays", 
Harv.  Law  Rev.,  XXI,  65  ;  id.,  XVI,  150.  See  also  T.  W.  Fulton,  Sovereignty 
of  the  Sea,  Edinburgh,  1911,  Chap.  Ill;  W.  Schiicking,  D«.s  Kiistenmeer 
im  internationalen  Rechte,  Gottingen,  1887,  §  4 ;  Romee  de  Villeneuve,  De  la 
determination  de  la  ligne  separative  des  eaiix  nationales  et  de  la  mer  territoriale 
specialement  dans  les  baies,  Paris,  1914 ;  Bonfils-Fauchille,  7  ed.,  §  516  ;  Hall, 
Higgins'  7  ed.,  §  41;  Oppenheim,  2  ed.,  I,  §§  191-193;  Rivier,  I,  153-157; 
Westlake,  2  ed.,  I,  191-192. 

1  "In  practice,  States  deal  with  their  own  bays  in  their  own  way,  and  in  so 
doing  suffer,  as  Schiicking  {Das  Kiistenmeer,  p.  21)  points  out,  the  less  inter- 
ference from  their  neighbours,  since  bays  are  not  usually  channels  of  com- 
munication on  the  highway  of  the  ocean  which  every  maritime  nation  is  con- 
cerned to  keep  open,  but  are  merely  means  of  access  to  ports  lying  within 
them."  A.  H.  Charteris,  "Territorial  Jurisdiction  in  Wide  Bays",  Int.  Law 
Association,  Proceedings,  23d  Conference,  103,  107. 

2  The  measurements  of  bays  as  stated  in  the  text,  under  this  title,  have  been 
furnished  the  author  by  the  Hydrographic  Office. 

^  Opinion  of  Mr.  Randolph,  Atty.-Gen.,  May  14,  1793,  in  the  course  of 
which  he  said:  "The  corner  stone  of  our  claim  is,  that  the  United  States  are 
proprietors  of  the  lands  on  both  sides  of  the  Delaware,  from  its  head  to  its 
entrance  into  the  sea."  Am.  State  Pap.,  For.  Rel.,  1, 148 ;  1  Ops.  Attys.-Gen., 
32,  Moore,  Dig.,  I,  735,  736. 

259 


§  146]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

are  well  marked,  and  but  twelve  miles  apart,  that  It  and  its  tribu- 
taries are  wholly  within  our  own  territory,  that  the  boundary 
lines  of  adjacent  States  encompass  it ;  that  from  the  earliest 
history  of  the  country  it  has  been  claimed  to  be  territorial  waters, 
and  that  the  claim  has  never  been  questioned ;  that  it  cannot 
become  the  pathway  from  one  nation  to  another ;  and  remember- 
ing the  doctrines  of  the  recognized  authorities  upon  international 
law,  as  well  as  the  holdings  of  the  English  courts  as  to  the 
Bristol  Channel  and  Conception  Bay,  and  bearing  in  mind  the 
matter  of  the  brig  Grange  and  the  position  taken  by  the  Gov- 
ernment as  to  Delaware  Bay,  we  are  forced  to  the  conclusion  that 
Chesapeake  Bay  must  be  held  to  be  wholly  within  the  territorial 
jurisdiction  and  authority  of  the  Government  of  the  United 
States  and  no  part  of  the  '  high  Seas '  within  the  meaning  of  the 
term  as  used  in  Section  5,  of  the  act  of  June  5,  1872.^ 

In  1877,  the  Judicial  Committee  of  the  Privy  Council  was  of 
opinion  that  Conception  Bay  in  Newfoundland,  having  a  width 
of  ten  and  a  quarter  nautical  miles  at  its  entrance  (at  Broad  Cove 
Head),  and  a  length  of  thirty-two  and  a  quarter  miles,  as  measured 
from  the  center  of  the  entrance  (on  a  line  from  Spit  Point  to  Cape 
St.  Francis)  to  the  mouth  of  Holy  Rood  Bay,  was  a  British  bay. 
Reliance  was  placed  upon  the  long  exercise  of  British  dominion 
over  and  exclusive  occupation  of  the  waters  in  question,  and  upon 
acquiescence  of  other  States.^ 

^  Second  Court  of  Commissioners  of  Alabama  Claims,  Stetson  v.  United 
States,  No.  3993,  class  1 ;  Moore,  Arbitrations,  IV,  4332-4341 ;  Moore,  Dig., 
I,  741-742.  In  Commonwealth  v.  Manchester,  152  Mass.  230,  it  was  held 
that  Buzzards  Bay,  the  distance  between  the  headlands  of  which  is  less  than 
two  marine  miles,  was  in  the  territorial  limits  of  Massachusetts.  Also, 
Dunham  v.  Lamphere,  3  Gray,  268,  270.  With  reference  to  Long  Island 
Sound,  see  Mahler  v.  Transportation  Company,  35  N.  Y.  352 ;  also  Shively  v. 
Bowlby,  152  U.  S.  1.  With  respect  to  Hudson  Bay,  see  Thomas  W.  Balch, 
"  Is  Hudson  Bay  a  Closed  or  an  Open  Sea?"     Am.  J.,  VI,  409. 

2  Direct  United  States  Cable  Co.  v.  Anglo-American  Telegraph  Co.  (1877),  L. 
R.  2  App.  Cas.  394 ;  Beale's  Cases  on  Conflict  of  Laws,  1, 37  ;  Moore,  Dig.,  1, 740. 

Although  unnecessary  for  the  decision  of  the  case  it  was  stated  by  the  Court 
in  Reg.  v.  Cunningham,  Bell's  C.  C.  72,  86,  with  respect  to  the  Bristol  Channel : 
■'That  the  whole  of  this  inland  sea  between  the  counties  of  Somerset  and 
Glamorgan  is  to  be  considered  as  within  the  counties  by  the  shores  of  which  its 
several  parts  are  respectively  bounded."     Moore,  Dig.,  I,  739-740. 

In  the  opinion  of  Mr.  Bates,  Umpire  in  the  case  of  The  Washington  under 
convention  between  the  United  States  and  Great  Britain  of  February  8,  1853, 
the  Bay  of  Fundy  was  not  a  British  bay  by  reason  of  the  fact  that  one  of 
its  headlands  was  in  the  United  States.    Aloore,  Arbitrations,  IV,  4342,  4344. 

The  United  States  and  Bering  Sea.  By  the  terms  of  the  convention 
concluded  with  Great  Britain  Feb.  29,  1892,  providing  for  the  so-called 
Fur  Seal  Arbitration  before  an  international  tribunal  at  Paris,  it  was 
agreed  that  there  should  be  submitted  to  the  arbitrators  five  points  with  a  view 
to  securing  a  distinct  decision  on  each  of  them.  MaUoy's  Treaties,  I,  748-749. 
The  first  of  these  raised  the  question  as  to  what  exclusive  jurisdiction  in  Bering 
Sea  and  what  exclusive  rights  in  the  seal  fisheries  therein  had  been  asserted  and 

260 


THE  GENERAL  PRINCIPLE  [§  146 

In  the  more  recent  Scotch  case  of  Mortensen  v.  Peters,  the  Danish 
master  of  a  trawler,  registered  in  Norway,  was  convicted  in  Scot- 
land of  having  violated  the  Sea  Fisheries  and  Herring  Fisheries 
(Scotland)  Act,  by  reason  of  his  having  used  a  method  of  otter- 
trawling  in  Moray  Firth,  at  a  point  more  than  three  marine 
miles  from  the  Scottish  coast,  but,  nevertheless,  within  a  line 
drawn  from  Duncansby  Head  in  Caithness-shire  to  Rattray  Point 
in  Aberdeenshire,  where  the  employment  of  such  a  method  of  trawl- 
ing was  prohibited  under  a  by-law  of  the  Scottish  Fishery  Board. 

exercised  by  Russia  prior  and  up  to  the  time  of  the  cession  of  Alaska  to  the 
United  States.  A  majority  of  the  Arbitrators  (embracing  all  of  them  except 
Senator  John  T.  Morgan)  declared  in  response,  that  while  Russia  had  claimed 
in  1821  jurisdiction  to  Bering  Sea  to  the  extent  of  one  hundred  Italian  miles 
from  the  coasts  and  islands  belonging  to  her,  she  had  subsequently  admitted 
in  the  course  of  concluding  treaties  with  the  United  States,  in  1824,  and  with 
Great  Britain,  in  1825,  that  her  jurisdiction  should  be  restricted  to  the  reach 
of  cannon  shot  from  shore  and  that  it  appeared  that,  "from  that  time  up  to 
the  time  of  the  cession  of  Alaska  to  the  United  States,  Russia  never  asserted 
in  fact  or  exercised  any  exclusive  jurisdiction  in  Bering's  Sea  or  any  ex- 
clusive rights  in  the  seal  fisheries  therein  beyond  the  ordinary  limit  of  terri- 
torial waters."  Malloy's  Treaties,  I,  753.  The  second  question  related  to 
the  extent  to  which  any  Russian  claims  of  jurisdiction  as  to  the  seal  fisheries 
had  been  recognized  and  conceded  by  Great  Britain.  The  same  majority  of 
the  arbitrators  declared  in  response,  that  Great  Britain  had  not  recognized 
or  conceded  any  claim  upon  the  part  of  Russia,  to  exclusive  jurisdiction  as  to 
those  fisheries  within  that  sea,  outside  of  ordinary  territorial  waters.  The 
third  question  was  in  part  whether  the  body  of  water  known  as  Bering  Sea  had 
been  included  in  the  phrase  "Pacific  Ocean"  as  used  in  the  treaty  of  1825, 
between  Great  Britain  and  Russia.  The  arbitrators  were  of  unanimous  opin- 
ion that  Bering  Sea  had  been  included  in  the  phrase  "Pacific  Ocean"  as  used 
in  that  treaty.  In  response  to  the  fourth  question,  whether  all  of  the  rights  of 
Russia  as  to  jurisdiction  and  as  to  the  seal  fisheries  in  Bering  Sea  east  of  the 
water  boundary,  in  the  treaty  between  the  United  States  and  Russia  of  1867, 
passed  unimpaired  to  the  United  States  under  that  treaty,  the  arbitrators  were 
of  unanimous  opinion  that  all  of  those  rights  did  so  pass.  In  response  to 
the  fifth  question,  whether  the  United  States  had  any  right,  and  if  so  what 
right,  of  protection  or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea,  when  such  seals  were  found  outside  of  the  ordinary 
three-mile  limit,  all  of  the  arbitrators,  except  Senator  Morgan  and  Mr.  Justice 
Harlan,  were  of  opinion  that  the  United  States  had  no  right  of  protection  or 
property  in  those  seals  when  they  were  foimd  outside  of  that  limit. 

It  seems  important  to  observe  that  the  United  States  in  asserting  a  right  of 
protection  or  property  in  the  fur  seals  freqvienting  its  islands  in  Bering  Sea, 
when  outside  of  the  ordinary  three-mile  limit,  did  not  purport  to  rest  its  case 
altogether  upon  any  jurisdictional  claim  (or  territorial  claim,  if  it  could  be 
called  such)  over  Bering  Sea.  See  Case  of  the  United  States,  Fur  Seal  Arbi- 
tration, Proceedings,  II,  85.  This  point  was  emphasized  in  the  Counter  Case 
of  the  United  States,  where  it  was  stated  :  "The  distinction  between  the  right 
of  exclusive  territorial  jurisdiction  over  Bering  Sea,  on  the  one  hand,  and  the 
right  of  a  nation,  on  the  other  hand,  to  preserve  for  the  use  of  its  citizens  its 
interests  on  land  by  the  adoption  of  all  necessary,  even  though  they  be  some- 
what unusual,  measures,  whether  on  land  or  sea,  is  so  broad  as  to  require  no 
further  exposition.  It  is  the  latter  right,  not  the  former,  that  the  United 
States  contend  to  have  been  exercised,  first  by  Russia,  and  later  by  themselves." 
Proceedings,  Fur  Seal  Arbitration,  \TI,  19. 

With  respect  to  the  claims  of  the  United  States  concerning  the  fisheries 
in  Bering  Sea  and  in  relation  to  the  Fur  Seal  Arbitration,  see  Moore,  Arbi- 
trations, I,  Chap.  VII,  and  documents  there  cited. 

261 


§  146]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

In  sustaining  the  conviction,  the  High  Court  of  Justiciary,  accord- 
ing to  the  opinion  of  the  Lord  Justice  General,  beheved  that  its 
single  duty  was  to  give  effect  to  an  Act  of  the  British  Parliament, 
and  not  to  consider  whether  that  Act  violated  the  law  of  nations.^ 

The  exercise,  however,  by  Great  Britain  of  rights  of  sovereignty 
over  the  waters  of  Moray  Firth  within  the  limits  stated  was  not 
without  significance,  inasmuch  as  the  distance  between  Duncansby 
Head  to  Rattray  Point  is  seventy-four  and  a  half  nautical  miles.^ 
Possibly  the  British  claim  would  have  aroused  less  interest  than 
it  did,  had  the  water  area  thus  enclosed  resembled  in  form  that 
embraced  in  Chesapeake  Bay,  rather  than  an  equilateral  triangle 
with  a  seaward  base  as  long  as  the  sides  indenting  the  land.^  It 
is  understood  that  Great  Britain  did  not  persist  in  maintaining 
exclusive  fishery  rights  within  these  broad  limits.^ 

Where  a  bay,  by  reason  of  its  general  configuration,  is  well 
surrounded,  except  at  its  entrance,  by  land  constituting  the  terri- 

1  Mortensen  v.  Peters,  8  Fraser,  93;  Am.  J.,1,  526,  at  533.  The  learned 
Lord  Justice  General  took  occasion  to  observe  that:  "International  law,  so 
far  as  this  court  is  concerned,  is  the  body  of  doctrine  regarding  the  inter- 
national rights  and  duties  of  States  which  has  been  adopted  and  made  part 
of  the  law  of  Scotland." 

2  "To  international  lawyers  the  interest  of  this  case  lies  less  in  the  decision 
than  in  the  legislation  on  which  it  turned.  And  here  one  cannot  help  feeling 
that  the  British  Parliament,  without  perhaps  being  fully  aware  of  what  it  was 
doing,  has  made,  in  reference  to  the  Moray  Firth,  a  claim  to  jiu-isdiction  to 
which  there  is  almost  no  parallel."  A.  H.  Charteris,  Report,  23d  Conference 
Int.  Law  Assn.,  Berlin,  1906,  130.  See,  also,  Harv.  Law  Rev.,  XXI,  65  ;  Charles 
Noble  Gregory,  "The  Recent  Controversy  as  to  the  British  Jurisdiction  over 
Foreign  Fishermen  more  than  Three  Miles  from  Shore."     Pol.  Sc.  Rev.,  I,  410. 

'  Declared  Sir  Robert  Finlay  in  the  course  of  his  oral  argument  before  the 
Alaskan  Boundary  Tribunal :  "What  I  am  going  to  submit  as  a  general  propo- 
sition of  international  law  is  this,  that  there  is  no  necessary  limit  as  regards 
the  width  of  the  estuary  or  inlet  which  is  to  be  regarded  as  territorial  waters ; 
but  where  you  have  got  a  very  deep  inlet  which  is  deep  out  of  aU  proportion 
of  its  breadth,  that  must  be  regarded  as  being  territorial  waters."  Proceedings, 
Alaskan  Boundary  Tribunal,  VI,  219.  See  Beale's  Cases  "on  Conflict  of  Laws, 
III,  Summary,  §  19 ;  For.  Rel.  1908,  677-680  with  respect  to  the  claims  of 
the  United  States  that  the  waters  of  Manzanillo  Bay  should  be  regarded  as 
territory  of  the  Canal  Zone,  and,  therefore,  subject  to  the  jurisdiction  of  the 
United  States. 

^  "The  debate  arose  upon  the  arrest  of  certain  Norwegian  fishermen  m  the 
waters  of  Moray  Firth.  .  .  .  Norway  protested  against  the  arrest  of  her 
citizens  in  that  water,  which  Norway  claimed  to  be  the  free  sea.  .  .  . 

"  Upon  this  debate  the  Foreign  Office  of  Great  Britain  allowed  the  protest 
of  Norway  and  released  the  Norwegian  citizens  who  had  been  arrested  for 
violating  this  statute  upon  that  water ;  and  accepted  the  situation  that  this 
statute,  which  in  terms  covered  this  water,  was  to  be  construed  as  the  Courts 
of  England  have  always  construed  statutes,  that  by  their  terms  extend  beyond 
the  limits  of  British  jurisdiction,  as  applying  only  to  British  subjects,  and  not 
applying  to  Norwegian  subjects."  Oral  Argument  of  Mr.  Root  in  behalf  of 
the  United  States,  North  Atlantic  Coast  Fisheries  Arbitration,  Proceedings, 
XI,  2168-2169. 

See,  also,  statement  by  Lord  Fitzmaurice  in  behalf  of  the  British  Govern- 
ment, in  the  House  of  Lords,  Feb.  21,  1907,  quoted  by  Mr.  Root  in  his  argu- 

262 


THE  GENERAL  PRINCIPLE  [§  146 

tory  of  a  State,  so  as  to  be  fairly  regarded  as  geographically  a 
part  thereof,  it  is  believed  that  the  water  area  may  be  not  unrea- 
sonably deemed  a  part  of  the  national  domain,  notwithstanding 
the  distance  between  the  opening  headlands.^     Xo  principle  of 

ment,  id.,  2160.  In  this  connection,  see  Thomas  Wemyss  Fulton,  The  Sov- 
ereignty of  the  Sea,  Edinburgh,  1911,  720-738,  with  reference  to  the  Moray 
Firth  case,  and  later  Parliamentary  discussions.  Cf.  The  Trawling  in  Pro- 
hibited Areas  Prevention  Act,  1909  (9  Edw.  VII,  c.  8)  ;  also  Oppenheim, 
2  ed.,  I,  §  192. 

1  According  to  Art.  Ill  of  the  Rules  for  the  Definition  and  Regime  of  the 
Territorial  Sea,  adopted  by  the  Institute  of  International  Law  in  1894 :  "For 
bays,  the  territorial  sea  follows  the  sinuosities  of  the  coast,  except  that  it  is 
measured  from  a  straight  line  drawn  across  the  bay  at  the  place  nearest  the 
opening  toward  the  sea  where  the  distance  between  the  two  sides  of  the  bay  is 
twelve  marine  miles  in  width,  unless  a  continued  usage  of  long  standing  has 
sanctioned  a  greater  breadth."  Annuaire,  XIII,  329,  J.  B.  Scott,  Resolutions, 
114.  See,  also,  25th  Report,  Int.  Law  Association,  Budapest  Conference 
(1908),  547. 

The  extent  of  territorial  waters  in  bays  has  frequently  been  the  subject  of 
international  agreement.  Thus,  Article  I  of  the  Fishery  Convention  between 
Great  Britain  and  France,  of  1867,  reserves  an  exclusive  right  of  fishing  within 
bays  not  exceeding  ten  miles  in  width,  measured  from  headland  to  headland. 
Nouv.  Rec.  Gen.,  XX,  466.  The  North  Sea  Convention  of  May  6,  1882,  to 
which  Great  Britain,  Germany,  Belgium,  Denmark,  France  and  Holland  were 
signatories,  reserving  exclusive  fishing  rights  within  three  miles  from  the  low- 
water  mark,  provides  in  Article  II,  "as  to  bays,  the  distance  of  three  miles 
shall  be  measured  in  a  straight  line  drawn  across  the  bay,  in  the  part  nearest 
the  entrance,  at  the  first  point  where  the  width  does  not  exceed  ten  miles." 
Nouv.  Rec.  Gen.,  2  ser.,  IX,  556,  557.  Section  I,  Article  II,  of  the  treaty  be- 
tween Spain  and  Portugal  of  October  2,  1885,  reserves  exclusive  fishery  rights 
in  bays  the  openings  of  which  do  not  exceed  twelve  geographical  miles.  Nouv. 
Rec.  Gen.,  2  ser.,  XIV,  77,  78.  See,  also,  A.  H.  Charteris,  23d  Report,  Int. 
Law  Association,  Berlin  Conference,  1906,  115-119. 

According  to  Article  I  of  the  protocol  annexed  to  the  Russo-Japanese 
Fisheries  Convention  of  July  15  (28),  1907,  granting  to  Japanese  subjects 
fishing  rights  along  the  coast  of  the  Russian  possessions  in  the  seas  of  Japan, 
Okhotsk  and  Bering,  such  privileges  were  expressly  excluded  in  specified  bays 
and  inlets.  It  was  provided,  for  example,  that  between  certain  points  in  the 
Sea  of  Okhotsk,  with  the  exception  of  Penjinsky  Gulf,  the  reservation  should 
apply  to  "Bays  which  cut  into  the  continent  a  distance  three  times  as  great 
as  the  width  of  their  entrance."  It  was  also  agreed  that  for  strategical 
reasons,  all  foreigners  should  be  prohibited  from  fishing  within  the  "terri- 
torial waters"  of  De  Castries  Bay,  St.  Olga  Bay,  Peter  the  Great  Bay  "from 
Cape  Povorotony  to  Cape  Gamov,  including  the  islands  within  this  bay." 
Am.  J.,  II,  Supp.,  274,  279-280.  The  distance  in  an  air  hue  between  those 
Capes  "as  measured  on  Hydrographic  Office  Chart  No.  1780,  is  81.45  nautical 
miles."  Mr.  Tittmann,  Supt.  Coast  and  Geodetic  Survev,  to  the  author, 
June  18,  1909. 

"Art.  II.  In  bays,  inlets,  and  gulfs  the  territorial  waters,  for  the  purposes 
stated  in  the  preceding  article,  are  those  included  within  the  external  (seaward) 
straight-line  tangent  to  the  two  circumferences  of  6-mile  radius  struck  with  the 
extreme  outer  points  of  the  bay,  inlet,  or  gulf  as  centers,  provided  that  the 
distance  between  the  said  points  does  not  exceed  20  nautical  miles  (37,040 
meters) . 

"If  the  distance  between  the  extreme  outer  points  of  the  opening  exceeds 
20  nautical  miles,  the  territorial  waters  are  those  included  within  the  straight 
line  drawn  between  the  two  most  seaward  points  of  the  bay,  inlet,  or  gulf 
distant  from  each  other  at  least  20  nautical  miles."  Italian  decree  relating 
to  jurisdictional  waters,  Aug.  6, 1914,  Naval  War  College,  Int.  Law  Documents, 
1918,  100. 

263 


§  146]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

law  as  yet  acquiesced  in  by  maritime  powers  appears  to  offer  any 
obstacle. 

(ii) 

§  147.   The  North  Atlantic  Coast  Fisheries  Arbitration. 

In  its  award  in  the  case  of  the  North  Atlantic  Coast  Fisheries 
Arbitration,  pursuant  to  a  convention  between  the  United  States 
and  Great  Britain  of  July  27,  1909,^  the  Tribunal  assembled  at  the 
Hague  declared  that, 

admittedly  the  geographical  character  of  a  bay  contains  con- 
ditions which  concern  the  interests  of  the  territorial  sovereign 
to  a  more  intimate  and  important  extent  than  do  those  con- 
nected with  the  open  coast.  Thus  conditions  of  national  and  ter- 
ritorial integrity,  of  defense,  of  commerce  and  of  industry  are 
all  vitally  concerned  with  the  control  of  the  bays  penetrating 
the  national  coast  line.  This  interest  varies,  speaking  gener- 
ally, in  proportion  to  the  penetration  inland  of  the  bay ;  but 
...  no  principle  of  international  law  recognizes  any  specified 
relation  between  the  concavity  of  the  bay  and  the  requirements 
for  control  by  the  territorial  sovereignty.^ 

The  Tribunal  was  called  upon  to  interpret  Article  I,  of  the  con- 
vention between  the  opposing  States,  concluded  October  20,  1818, 
and  was  confronted  with  the  precise  question  from  where  should 
be  measured  the  "three  marine  miles  of  any  of  the  coasts,  bays, 
creeks,  or  harbours  ",  on  or  within  which  (according  to  that  Article) 
the  United  States  had  renounced  forever,  any  "liberty  heretofore 
enjoyed  or  claimed  by  the  Inhabitants  thereof,  to  take,  dry,  or 
cure,  fish."  The  Tribunal,  having  utmost  regard  for  what,  in 
view  of  all  the  evidence,  was  deemed  to  have  been  in  the  minds 
of  the  negotiators,  in  1818,  concluded  that  the  description  of  the 
coast  was  expressed  throughout  the  treaty  in  geographical  terms, 
and  not  by  reference  to  political  control,  and  decided  that  the 
measurement  in  the  case  of  bays  should  be  from  a  straight  line 
across  the  body  of  water  at  the  place  where  it  ceased  to  have  the 
configuration  and  characteristics  of  a  bay,  and  that  at  all  other 

1  Malloy's  Treaties,  I,  835.  It  should  be  observed  that  this  special  agree- 
ment assumed"  the  form  of  a  convention  concluded  Jan.  27,  1909,  and  which 
was  submitted  to  the  Senate  for  approval.  The  Senate  having  advised 
and  consented  to  ratification  (subject  to  certain  interpretative  reservations 
acceptable  to  Great  Britain)  on  Feb.  18,  1909  {id.,  843),  the  agreement  was 
confirmed  by  an  exchange  of  notes  March  4,  1909,  id. 

^  Proceedings,  North  Atlantic  Coast  Fisheries  Arbitration,  I,  94,  Senate  Doc. 
No.  870,  61  Cong.,  3  Sess. 

264 


NORTH  ATLANTIC  COAST  FISHERIES  ARBITRATION     [§  147^ 

places  the  three  marine  miles  should  be  measured  following  the 
sinuosities  of  the  coast. ^ 

Declaring,  however,  that  this  decision,  although  correct  in  prin- 
ciple, was  not  entirely  satisfactory  as  to  its  practical  applicability, 
and  that  it  left  room  for  doubts  and  differences  in  practice,  the 
Tribunal  recommended,  in  virtue  of  responsibilities  imposed  upon 
it  by  the  terms  of  the  special  agreement,  certain  rules  and  methods 
of  procedure  for  the  determination  of  the  limits  of  bays  previously 
enumerated.  It  was  thus  declared  that  in  every  bay  not  there- 
after specifically  provided  for,  the  limits  of  exclusion  should  be 
drawn  three  miles  seaward  from  a  straight  line  across  the  bay  in 
the  part  nearest  the  entrance  "  at  the  first  point  where  the  width 
does  not  exceed  ten  miles."  ^  It  was  further  declared  that  in  a 
number  of  bays  specified,  where  the  configuration  of  the  coast  and 
the  local  climatic  conditions  were  such  that  foreign  fishermen  when 
within  the  geographic  headlands  might  reasonably  and  bona  fide 
believe  themselves  on  the  high  seas,  the  limits  of  exclusion  should 
be  drawn  in  each  case  between  the  headlands  thereafter  specified 
as  being  those  at  and  within  which  such  fishermen  might  be  reason- 
ably expected  to  recognize  the  bay  under  average  conditions. 

'  The  Tribunal  was  composed  of  Dr.  H.  Lammasch  (Austria),  President, 
Jonkheer  A.  F.  de  Savornin  Lehman  (Netherlands),  Judge  George  Gray 
(United  States),  Sir  Charles  Fitzpatrick  (Canada),  and  Dr.  Luis  M.  Drago 
(Argentina).  Dr.  Drago  dissented  from  the  opinion  of  his  colleagues  with  re- 
spect to  the  solution  of  the  (fifth)  question  of  measurement  as  stated  in  the  text. 

See,  in  this  connection,  Chandler  P.  Anderson,  "The  Final  Outcome  of  the 
Fisheries  Arbitration",  Am.  J.,  VII,  1 ;  Robert  Lansing,  "The  North  Atlantic 
Fisheries  Arbitration",  Am.  J.,  V,  1,  19-25;  Thomas  Willing  Balch,  "La 
decision  de  la  cour  -permanente  d'arbitrage",  Rev.  Droit  Int.,  2  ser.,  XIII,  5; 
J.  de  Louter,  " L'arbitrage  dans  le  conflit  Anglo-Americain" ,  id.,  131;  J. 
Basdevant,  "L' affaire  des  pecheries  des  cotes  septentrionales  de  V Atlantique" , 
Rev.  Gen.,  XIX,  421. 

2  In  making  this  recommendation  the  Tribunal  adverted  to  British  treaties 
with  France,  with  the  North  German  Confederation  and  with  the  German 
Empire,  and  to  the  North  Sea  Convention,  in  which  there  had  been  adopted  for 
similar  cases  the  rule  that  only  bays  of  ten  miles  in  width  should  be  considered 
as  those  wherein  the  fishing  was  reserved  to  nationals.  It  considered  also  the 
fact  that  in  the  course  of  negotiations  between  the  L^nited  States  and  Great 
Britain,  a  similar  rule  had  been  on  various  occasions  proposed  and  adopted 
by  Great  Britain  in  instructions  to  naval  officers  stationed  on  the  coasts  con- 
cerned. It  was  declared  that  "though  these  circumstances  are  not  sufficient 
to  constitute  this  a  principle  of  international  law,  it  seems  reasonable  to  pro- 
pose this  rule  with  certain  exceptions,  all  the  more  that  this  rule,  with  such 
exceptions,  has  already  formed  the  basis  of  an  agreement  between  the  two 
Powers."     Proceedings,  I,  97. 

Cf.  Art.  II  of  agreement  concluded  with  Great  Britain  July  20,  1*912,  adopt- 
ing, with  certain  modifications,  the  rules  and  methods  of  procedure  recom- 
mended in  the  award  in  the  North  Atlantic  Coast  Fisheries  Arbitration, 
Charles'  Treaties,  69.  Concerning  the  Fortune  Bay  case,  involving  an  attack 
upon  American  fishermen  while  fishing  within  its  waters,  Sunday,  Jan.  6,  1878, 
and  the  payment  by  Great  Britain  of  claims  arising  therefrom,  see  For.  Rel. 
1881,  496-510,  514-515,  544-545 ;   also  Moore,  Dig..  I,  807-808. 

265 


§  147]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

It  should  be  borne  in  mind  that  the  award  had  a  twofold  aspect ; 
first,  as  an  arbitral  decision  interpretative  of  an  old  convention ; 
and  secondly,  as  an  arbitral  recommendation  based  upon  the 
special  circumstances  of  the  case,  in  the  light  of  the  practices  and 
equities  of  the  opposing  States  with  respect  to  the  fisheries  within 
the  areas  concerned.  The  failure  of  the  United  States  to  convince 
the  Tribunal  that  it  was  the  design  of  the  negotiators  of  the  treaty 
of  1818  that  the  distance  of  "three  marine  miles  of  any  of  the 
coasts,  bays,  creeks,  or  harbours",  should  be  measured  from  low- 
water  mark  following  the  indentations  of  the  coast,^  seems  to 
have  been  due  in  part  to  the  following  circumstances.  The  Tri- 
bunal did  not  believe  that  the  so-called  three-mile  rule  determining 
the  limits  of  territorial  waters  on  the  high  seas  established  the 
method  or  principle,  as  accepted  in  1818,  of  determining  the  limits 
also  of  such  waters  within  bays.^  That  the  United  States  had 
long  regarded  certain  wide  bays,  such  as  Delaware  Bay,  as  within 
its  domain  was  a  circumstance  which,  however  sought  to  be  ex- 
plained, doubtless  weakened  the  influence  of  the  American  con- 
tention, and  weighed  upon  the  minds  of  the  arbitrators.^  As  a 
principle  of  interpretation,  the  Tribunal  declined  to  take  cogni- 
zance of  later  practices  of  the  nineteenth  century  concerning  the 
territorial  sovereignty  over  bays,  as  shedding  light  upon  the  sense 
in  which  particular  terms  were  employed  by  the  plenipotentiaries 
in  1818.^ 

1  Such  was  the  contention  of  the  United  States.  Case  of  the  United  States, 
248,  Proceedings,  II.  In  his  dissenting  opinion,  Dr.  Drago  acquiesced  in  the 
American  contention.     Proceedings,  I,  102,  104-106. 

See  Oral  Argument  of  Mr.  Ehhu  Root,  Counsel  for  the  United  States,  Pro- 
ceedings, XI,  2139-2193 ;  North  Atlantic  Coast  Fisheries  Arbitration  at  the 
Hague,  Argument  on  Behalf  of  the  United  States  by  Elihu  Root,  edited  by- 
Robert  Bacon  and  James  Brown  Scott,  Cambridge,  1917. 

2  In  the  course  of  the  award  it  was  declared :  "It  has  not  been  shown  by 
the  documents  and  correspondence  in  evidence  that  the  application  of  the 
three-mile  rule  to  bays  was  present  to  the  minds  of  the  negotiators  in  1818, 
and  they  could  not  reasonably  have  been  expected  either  to  presume  it  or  to 
provide  against  its  presumption."  Proceedings,  I,  94-95.  Compare  dissent- 
ing o^^inion  of  Dr.  Drago,  id.,  104—106,  112. 

3  See  the  award,  Proceedings,  I,  95 ;  also  Robert  Lansing,  in  Am.  J.,  V,  1, 
22-23,  where  it  was  said:  "in  this  connection  they  [British  Coimsel]  relied 
upon  the  cases  of  Delaware  Bay  and  Chesapeake  Bay,  over  which,  it  was 
pointed  out,  the  United  States  had  claimed  and  successfully  maintained 
jurisdiction,  although  each  exceeded  six  miles  in  width  at  its  entrance. 

"The  answer  of  the  United  States  to  this  latter  argument,  which  was  un- 
doubtedly difficult  to  meet,  was  that  at  the  time  the  claim  was  made  a  con- 
dition of  belligerency  existed  which  gave  to  the  United  States  extraordinary 
rights  over  those  waters ;  and,  that  in  any  event,  other  nations  having  ac- 
quiesced in  the  claim,  the  rights  of  the  United  States  rested  upon  a  principle 
entirely  different  from  the  general  rule  and  formed  an  exception  to  it." 

*  See  award.  Proceedings,  I,  94  ;  Agreements  between  States,  Sources  of  In- 
terpretation, The  North  Atlantic  Coast  Fisheries  Arbitration,  infra,  §  533. 

266 


LAKES  AND  ENCLOSED  SEAS  [§  149 

(iii) 
§  148.    Certain  Conclusions. 

In  the  effort  to  secure  general  agreement  among  maritime 
States  respecting  the  territorial  limits  of  bays,  consideration  must 
be  given  the  fact  that  in  practice,  the  theory  productive  of  the  so- 
called  three-mile  rule  for  the  measurement  of  the  marginal  sea 
has  not  been  deemed  applicable  to  bays,  and  that  geographical 
and  economic  considerations,  rather  than  any  other,  have  been 
decisive  of  claims  of  sovereignty.  Bays  which,  regardless  of  their 
size  and  possibly  even  of  their  configuration,  have  been  long  sub- 
jected to  territorial  control  must  be  dealt  with  accordingh\  Tlie 
feasibility  of  specifying  what  indentations  along  the  coastline  of 
a  continent  should  be  acknowledged  to  constitute  territorial 
waters  must  depend  upon  the  degree  of  respect  paid  to  claims  of 
sovereignty  long  and  reasonably  exercised,  rather  than  upon  the 
application  of  a  uniform  linear  test.  Doubtless  the  problem  is 
complicated  by  general  claims  of  fishing  rights  in  certain  areas. 
It  should  be  observed,  however,  that  such  claims,  although  doubt- 
less to  be  adjusted  according  to  the  equities  of  the  claimants  in 
particular  cases,  are  not  decisive  of  the  general  principle  involved. 
Above  all,  regard  must  be  had  for  the  circumstance  that  in  the  case 
of  bays,  in  contrast  to  that  of  the  marginal  sea,  the  general  in- 
terest of  the  society  of  nations  still  remains  unopposed  to  broad 
assertions  of  territorial  sovereignty  by  the  individual  State. 

(f) 
§  149.   Lakes  and  Enclosed  Seas. 

A  lake  or  land-locked  sea  lying  wholly  within  the  body  of  a 
single  State  is  deemed  to  be  a  part  of  the  national  domain.^  This 
is  true  whether  the  water  area  is  what  has  been  described  as  an 
interior  sea,  such  as  the  Dead  Sea  or  Lake  Winnipeg,  or  whether, 
like  Lake  INIichigan,  it  forms  a  link  in  a  chain  of  navigable  water- 
ways leading  to  the  ocean .^  Nor  does  it  affect  the  right  of  sover- 
eignty that  the  waters  of  a  lake  find  their  outlet  through  a  strait 

1  Rivier,  I,  143-145,  translated  in  Moore,  Dig.,  I,  669,  and  writers  cited; 
Oppenheim,  2  ed.,  I,  §§  179-181 ;   Bonfils-Fauchille,  7  ed.,  §§  495-505. 

2  The  geographical  test  of  whether  a  lake  or  land-locked  sea  is  an  interior 
one,  does  not  seem  to  be  applied  with  uniformity  or  precision,  and  possibly 
on  account  of  uncertainty  as  to  what  should  be  deemed  to  constitute  a  direct 
and  sufficient  connection  with  the  ocean.  Rivier  mentions  Lakes  Erie, 
Ontario,  Huron  and  Superior  in  his  list  of  interior  seas.  I,  145.  It  is  believed 
that  the  nature  of  the  physical  connection  with  the  ocean  should  not  be  de- 
cisive of  the  territorial  character  of  such  bodies  of  water. 

267 


§  149]     GENERAL    RIGHTS    OF   PROPERTY    AND    CONTROL 

or  river  comprising  the  territorial  waters  of  one  or  more  foreign 
States.  It  is  the  fact  that  the  water  area  is  wholly  within  the 
territory  of  a  single  State  which  seems  to  be  regarded  as  justifying 
the  claim  of  control  and  sovereignty  therein. 

When  a  lake  or  interior  sea  is  surrounded  by  the  territories  of 
two  or  more  States,  such  as  Lake  Constance,  it  may,  nevertheless, 
be  regarded  as  belonging  to  them  in  proportional  parts,  if  those 
States  are  so  agreed,  and  provided  no  well-defined  and  grave  inter- 
national interest  supervenes.^  The  Great  Lakes  of  Ontario,  Erie, 
Huron  and  Superior,  and  their  water  communications  constituting 
the  boundary  between  the  United  States  and  Canada,  are  wholly 
territorial.  The  line  of  demarcation  passes  through  the  middle  of 
the  area.     Declared  Mr.  Uhl,  Acting  Secretary  of  State,  in  1894 : 

By  the  treaty  of  peace  of  178.3  the  lakes  were  divided  between 
the  contracting  parties  and  the  boundaryfixed  as  running  through 
the  middle  of  the  lakes  and  of  the  waterways  connecting  them. 
The  United  States  and  Great  Britain  thus  shared  thenceforth, 
to  the  exclusion  of  any  claim  whatsoever  of  a  third  nation,  the 
territorial  sovereignty  over  the  lake  waters  which  had  thereto- 
fore been  wholly  British,  and  it  was  competent  for  the  two  coun- 
tries to  treat  with  each  other  in  respect  to  their  relative  rights 
in  those  lakes  without  encroaching  on  any  possible  right  of  an- 
other country.^ 

It  must  be  clear  that  the  Supreme  Court  of  the  L^nited  States 
in  concluding  in  1893,  that  the  term  "high  seas",  as  used  in  a  sec- 
tion of  the  Revised  Statutes  to  denote  places  within  which  the  com- 
mission of  specified  acts  on  a  vessel  was  rendered  criminal,  em- 
braced the  unenclosed  waters  of  the  Great  Lakes  between  which 
the  Detroit  River  was  a  connecting  stream,  did  not  intimate  that 
those  waters  were  not  territorial.^ 

1  Rivier,  I,  143;  Oppenheim,  2  ed.,  I,  §  179.  Contra,  Bonfils-Fauchille, 
7  ed.,  §  495. 

2  Communication  to  Messrs.  Laughlin,  Ewell  and  Houpt,  May  23,  1894, 
197  Dom.  Let.  118,  Moore,  Dig.,  I,  672,  673. 

See  Article  II,  treaty  between  the  United  States  and  Great  Britain,  1783, 
Malloy's  Treaties,  I,  587.  Concerning  the  demarcation  of  the  water  boundary 
in  the  Great  Lakes  under  Articles  VI  and  VII  of  the  Treaty  of  Ghent,  see 
Moore,  Arbitrations,  I,  Chaps.  V  and  VI.  See,  also,  treaty  between  the 
United  States  and  Great  Britain  for  the  more  complete  definition  and  de- 
marcation of  the  international  boundary  between  the  United  States  and  the 
Dominion  of  Canada,  April  11,  1908,  Malloy's  Treaties,  I,  815. 

'  United  States  v.  Rodgers,  150  U.  S.  249 ;  also  dissenting  opinions  of  Mr. 
Justice  Gray,  id.,  266,  and  of  Mr.  Justice  Brown,  id.,  279.  Cf.  also  Illinois 
Central  Railroad  Co.  v.  Illinois,  146  U.  S.  387,  436-437.  Also  in  this  con- 
nection, see  H.  E.  Hunt,  "How  the  Great  Lakes  Became  'High  Seas',  and 
Their  Status  Viewed  from  the  Standpoint  of  International  Law",  Am.  J., 
IV,  285,  300-301. 

268 


STRAITS  [§  150 

A  special  situation  arises  where  a  large  inland  sea,  such  as  the 
Black  Sea,  having,  nevertheless,  a  connection  with  the  ocean,  is 
surrounded  by  the  territories  of  two  or  more  States,  and  finds  an 
outlet  to  the  ocean  through  the  territorial  waters  of  one  of  them. 
In  this  particular  case  the  magnitude  of  the  water  area  involved, 
its  connection  with  the  ocean,  its  importance  as  a  means  of  access 
to  certain  countries  adjacent  to  it,  and  the  resulting  general  in- 
terest of  maritime  powers  that  it  be  dealt  with  as  the  high  seas, 
have  combined  to  justify  the  insistent  demand  that  the  Black  Sea 
be  not  partitioned  among  the  surrounding  States  and  regarded  as 
territorial.  Deemed,  therefore,  non-territorial,  the  right  of  Tur- 
key to  control  the  sole  access  thereto  through  the  Bosphorus  and 
the  Dardanelles  was,  even  before  The  World  War,  looked  upon  as 
proportionally  limited.^ 

§  150.    Straits.  ^^^ 

Where  a  strait  or  narrow  passage  connecting  two  open  seas  con- 
stitutes the  boundary  between  two  States,  the  line  of  demarcation 
is  said  to  be  "governed  by  substantially  the  same  principles  as 
that  of  the  limits  of  territorial  jurisdiction  in  and  over  rivers."  ^ 
It  is  believed,  therefore,  that  the  principle  of  thalweg  is  applicable 
in  such  case  and  that  the  boundary  line  should  follow  the  middle 
of  the  main  channel,  if  there  be  one.^ 

A  strait  may  be  a  part  of  the  territorial  waters  of  the  bordering 
States  although  it  has  a  width  of  more  than  six  marine  miles  at 
either  terminus,  or  throughout  its  course.  The  United  States  and 
Great  Britain  exercise  dominion  over  the  waters  of  the  Straits  of 
Fuca,  the  breadth  of  which  at  its  narrowest  part  is  about  ten  ma- 
rine miles.'* 

It  may  be  doubted  whether  there  is  a  practice  marking  a  pre- 
cise limit  of  the  width  of  straits  which  may  be  regarded  as  terri- 
torial when  the  adjacent  shores  belong  to  different  States.  The 
society  of  nations  is  rather  concerned  with  the  matter  of  naviga- 
tion through  such  waters  as  are  acknowledged  to  belong  to  the 

1  Woolsey,  6  ed.,  78-79;  Dana's  Wheaton,  §  182;  Oppenheim,  2  cd.,  I, 
§  181;  BonfUs-Fauchille,  7  ed.,  §§  499-503;  Articles  I,  II,  and  III  of  treaty 
of  London,  of  March  13,  1871,  Nojw.  Rec.  Gen.,  XVIII,  303,  305,  annexing 
thereto  Articles  XI,  XIII,  and  XIV  of  the  Treaty  of  Paris,  of  March  30,  1856, 
ATow.  Rec.  Gen.,  XV,  770,  775-776. 

^  Statement  in  Moore,  Dig.,  I,  658. 

^  Louisiana  v.  Mississippi,  202  U.  S.  1,  50;  Art.  X  of  Rules  adopted  by  the 
Institute  of  International  Law,  March  31,  1894,  Annuaire,  330-331,  Moore, 
Dig.,  I,  659,  J.  B.  Scott.  Resolutions,  115. 

^  Mr.  Wharton,  Acting  Secv.  of  State,  to  Secv.  of  the  Treasury,  May  22, 
1891,  182  MS.  Dom.  Let.  79,  citing  Hall,  3  ed.,  140,  Moore,  Dig.,  I,  658. 

269 


§  150]     GENERAL   RIGHTS    OF   PROPERTY    AND    CONTROL 

littoral  States.^  The  interests  of  tliat  society  might,  however,  be 
generally  opposed  to  the  claim  that  any  strait,  however  broad, 
which  could,  at  the  present  time,  be  subjected  to  control  by  means 
of  guns  placed  on  either  or  both  shores,  should  be  regarded  as  sub- 
ject to  the  exercise  of  rights  of  sovereignty  throughout  its  broad 
extent. 

Where  a  strait,  such  as  Long  Island  Sou'nd,  separates  the  terri- 
tories of  a  single  proprietor,  and  also  forms  no  necessary  channel 
of  communication  for  international  commerce  between  the  bodies 
of  water  with  which  it  forms  a  connection,  the  general  maritime 
interest  in  the  extent  of  the  claim  of  that  proprietor  becomes 
relatively  small,  and  does  not  appear  to  limit  by  any  exact  test 
its  assertion  of  rights  of  sovereignty.^  It  should  be  observed  that 
in  the  Rules  on  the  Definition  and  Regime  of  the  Territorial  Sea, 
adopted  by  the  Institute  of  International  Law  in  1894,  it  was 
declared  that  straits  of  which  the  shores  belong  to  the  same  State 
and  which  are  indispensable  to  maritime  communication  between 
two  or  more  States  other  than  the  littoral  State,  always  form  a 
part  of  the  territorial  waters  of  that  State,  regardless  of  the 
distance  between  the  coasts.^ 

(3) 
§  151.   Determination  of  Boundaries. 

A  dispute  between  States  respecting  a  boundary  may  be  ad- 
justed by  any  of  the  means,  amicable  or  otherwise,  by  which  in- 
ternational differences  are  settled."*  If  diplomacy  fails,  and 
recourse  be  had  to  arbitration  or  to  the  offices  of  a  joint  tribunal, 
the  special  agreement  or  compromis  providing  for  the  employment 
of  such  an  agency  usually  defines  with  exactness  the  problems 
involved,  and  the  nature  of  the  duties  of  the  tribunal.  Sometimes 
that  agreement  announces  certain  principles  of  international  law 
which  the  court  is  to  respect.^     As  in  other  classes  of  cases,  and 

1  Following  the  proposal  of  Sir  Thomas  Barclay  in  his  report  to  the  Institute 
of  International  Law  in  1912,  Annuaire,  XXV,  375,  3S6,  and  in  his  Report  to  the 
International  Law  Association  in  1895,  Report  of  Seventeenth  Conference  at 
Brussels,  113,  the  Naval  War  College,  in  1913,  concluded  that  "Straits,  when 
not  more  than  twelve  miles  in  width,  are  under  the  jurisdiction  of  the  adjacent 
State  or  States."     Int.  Law  Topics,  1913,  47. 

2  Id.,  46.  See,  also,  in  this  connection,  Mahler  v.  Transportation  Co., 
35  N.  Y.  352,  355 ;   also  Dana's  Wheaton,  262. 

^  Annuaire,  XIII,  330,  J.  B.  Scott,  Resolutions,  115.  The  language  of  the 
original  text  with  respect  to  the  distance  between  the  coasts  is  :  "quel  que  soil 
le  rapprochement  des  cotes." 

*  Recourse  to  Arbitration  by  the  United  States,  Territorial  Differences, 
infra,  §  563. 

*  See,  for  example,  convention  of  Jan.  24,  1903,  between  the  L^nited  States 

270 


DETERMINATION  OF  BOUNDARIES  [§  151 

subject  to  the  same  exceptions,  an  agreement  to  adjust  a  contro- 
versy relating  to  a  boundary  by  reference  to  an  international  tri- 
bunal, serves  to  impose  upon  the  contracting  parties  an  obligation 
to  abide  by  the  award. 

Even  when  there  is  no  disagreement  as  to  the  principles  govern- 
ing the  course  of  a  boundary,  or  after  a  judicial  tribunal  has  indi- 
cated how  it  should  be  drawn,  the  actual  demarcation  or  delimita- 
tion of  the  line  may  give  rise  to  special  technical  problems.  For 
their  solution  it  is  not  uncommon  to  arrange  by  convention  for 
the  appointment  of  experts  to  mark  the  boundary  according  to 
given  directions,  and  to  agree  that  the  line  thus  established  shall 
be  deemed  to  be  the  true  boundary.^  Provision  is  sometimes 
made  that  in  case  such  experts  disagree,  separate  reports  shall  be 
made  to  the  contracting  States,  which  shall  thereupon  take  further 
steps  to  reach  an  agreement.^ 

The  decisions  of  domestic  tribunals  as  to  the  extent  of  the 
national  domain  cannot  affect  the  adverse  claims  of  a  foreign 
State ;  and  they  may  also  serve  seriously  to  embarrass  the  proper 
department  of  the  same  Government  in  the  assertion  of  rights  of 
sovereignty.  jNIatters  of  such  a  character  are,  therefore,  regarded 
as  raising  questions  essentially  political  rather  than  judicial. 
Hence  the  decisions  of  the  political  department  of  a  State  are,  in 
the  case  of  the  United  States,  deemed  to  be  binding  upon  the 
courts.^     Of  the  extent  of  the  territorial  limits  announced  by  the 

and  Great  Britain  for  the  settlement  of  the  Alaskan  Boundary  dispute,  For. 
Rel.  1903,  488,  Malloy's  Treaties,  I,  787 ;  also  Article  IV  of  Convention  of 
Feb.  2,  1897,  between  Great  Britain  and  Venezuela  for  the  settlement  of  the 
British  Guiana-Venezuelan  Boundary  Dispute,  Brit,  and  For.  State  Pap., 
LXXXIX,  57;   Moore,  Dig.,  I,  297. 

1  See,  for  example,  convention  between  the  United  States  and  Mexico,  of 
July  29,  1882,  providing  for  an  international  commission  to  re-locate  the  inter- 
national boundary  in  certain  places,  Malloy's  Treaties,  I,  1141;  also  con- 
vention between  the  United  States  and  Great  Britain,  of  April  11,  1908,  con- 
cerning the  Canadian  international  boundary,  id.,  815.  Cf.  Art.  35  of  treaty 
of  peace  with  Germany  of  June  28,  1919,  relative  to  the  settlement  of  the  new 
frontier  line  between  Belgium  and  Germany. 

2  See,  for  example.  Article  IX  of  convention  between  the  United  States 
and  Great  Britain,  of  April  11,  1908,  for  the  more  complete  definition  and 
demarcation  of  the  boundary  between  the  United  States  and  the  Dominion 
of  Canada,  Malloy's  Treaties,  I,  826. 

3  In  Jones  v.  United  States,  137  U.  S.  202,  212-213,  it  was  declared  by  Mr. 
Justice  Gray  in  the  course  of  the  opinion  of  the  Court :  "  Who  is  the  sovereign, 
de  jure  or  de  facto,  of  a  territory  is  not  a  judicial,  but  a  political  question,  the 
determination  of  which  by  the  legislative  and  executive  departments  of  any 
government  conclusively  binds  the  judges,  as  well  as  all  other  officers,  citizens 
and  subjects  of  that  government.  This  principle  has  always  been  ui)held 
by  this  court,  and  has  been  affirmed  under  a  great  varietv  of  circumstances. 
Gelston  v.  Hovt,  3  Wheat.  246,  324;  United  States  v.  Palmer,  3  Wheat.  610; 
The  Divina  Pastora,  4  Wheat.  52;  Foster  v.  Neilson,  2  Pet.  253,  307,  309; 
Keane  v.  McDonough,  8  Pet.  308;  Garcia  v.  Lee,  12  Pet.  511,  520;  WilUams  v. 

271 


§  151]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

former,  the  latter  take  judicial  notice.^  This  is  true  whether  a 
boundary  is  the  subject  of  international  controversy,  or  a  question 
arises  as  to  what  State  or  authority  therein  is  to  be  regarded  as 
possessing  rights  of  sovereignty  over  any  particular  geographical 
area.^  The  decisions  of  the  political  department  in  such  matters 
are  likewise  binding  upon  the  nationals  of  the  same  State.^ 

b 

Certain  Limitations  of  the  Right  of  Control  over  What  Per- 
tains to  the  Territory  of  a  State 

(1) 

§  152.   In  General.     Servitudes. 

The  supremacy  of  a  State  as  sovereign  over  what  constitutes 
the  national  domain,  embracing  the  land  and  territorial  waters 

Suffolk  Ins.  Co.,  13  Pet.  415 ;  United  States  v.  Yorba,  1  Wall.  412,  423 ;  United 
States  ;;.  Lynde,  11  Wall.  632,  638.  It  is  equally  well  settled  in  England.  The 
Pelican,  Edw.  Adm.  appx.  D;  Taylor  v.  Barclay,  2  Sim.  213;  Emperor  of 
Austria  v.  Dav,  3  DeG.,  F.  &  J.  217,  221,  233;  Republic  of  Peru  v.  Peruvian 
Guano  Co.,  36  Ch.  D.  489,  497 ;  Republic  of  Peru  v.  Dreyfus,  38  Ch.  D.  248, 
356,  359."  Cf.,  also,  Pearcy  v.  Stranahan,  205  U.  S.  257;  Oetjen  v.  Central 
Leather  Co.,  246  U.  S.  297. 

1  Jones  V.  United  States,  137  U.  S.  202,  214,  where  it  was  said  :  "All  courts 
of  justice  are  bound  to  take  judicial  notice  of  the  territorial  extent  of  the  juris- 
diction exercised  by  the  government  whose  laws  they  administer,  or  of  its 
recognition  or  denial  of  the  sovereignty  of  a  foreign  power,  as  appearing  from 
the  public  acts  of  the  legislature  and  executive,  although  those  acts  are  not 
formally  put  in  evidence,  nor  in  accord  with  the  pleadings." 

2  Foster  v.  Neilson,  2  Pet.  253,  307;  Garcia  v.  Lee,  12  Pet.  511 ;  Williams  v. 
Suffolk  Ins.  Co.,  13  Pet.  415,  420;  United  States  v.  Reynes,  9  How.  127; 
United  States  v.  Texas,  143  U.  S.  621 ;  Jones  v.  United  States,  137  U.  S.  202, 
212-213;  In  re  Cooper,  143  U.  S.  472,  502-505;  Reg.  v.  Keyn,  2  Ex.  D.  63; 
Pearcy  v.  Stranahan,  205  U.  S.  257,  265.  Compare  concurring  opinion  of 
Mr.  Justice  White,  id.,  273. 

In  the  course  of  the  opinion  of  the  Court  in  In  re  Cooper,  supra,  at  503, 
it  was  declared  that:  "We  are  not  to  be  understood,  however,  as  under- 
rating the  weight  of  the  argument  that  in  a  case  involving  private  rights,  the 
court  may  be  obliged,  if  those  rights  are  dependent  upon  the  construction  of 
acts  of  Congress  or  of  a  treaty,  and  the  case  turns  upon  a  question,  public  in 
its  nature,  which  has  not  been  determined  by  the  political  departments  in  the 
form  of  a  law  specifically  settling  it,  or  authorizing  the  executive  to  do  so,  to 
render  judgment,  'since  we  have  no  more  right  to  decline  the  jurisdiction 
which  is  given  than  to  usurp  that  which  is  not  given.'" 

Cf.,  also,  Cordova  v.  Grant,  248  U.  S.  413,  where  the  plaintiff's  title  to  land 
depended  on  whether  the  international  boundary  along  the  Rio  Grande  had 
shifted  with  the  river.  The  defendant  asserted  that  the  United  States,  al- 
though exercising  de  facto  jurisdiction  over  the  locns,  had  conceded  the  bound- 
ary to  be  unsettled,  having  by  treaty  agreed  to  adjust  it  by  an  international 
commission  with  exclusive  jurisdiction  to  settle  it.  It  was  held  that  this 
circumstance  did  not  oust  the  United  States  District  Coiu^t  of  jurisdiction  in 
the  particular  case,  because  the  LTnited  States  had  rejected  the  action  of  the 
commission  under  the  treaty,  and  had  also  waived  objections  based  on  comity 
to  the  litigation. 

'  Poole  V.  Fleeger,  11  Pet.  185;    Robinson  v.  Minor,  10  How.  627;    Mr. 

272 


IN  GENERAL.     SERVITUDES  [§  152 

and  superjacent  air  space,  must  be  recognized  as  a  fundamental 
principle  of  international  law,  to  which  the  United  States  avows 
attachment.^  There  exist,  however,  certain  definite  limitations 
which  in  practice  are  acknowledged  to  restrict  the  territorial 
sovereign  in  the  exercise  of  rights  of  control,  and  which  vary  some- 
what according  to  the  nature  of  the  thing  over  which  those  rights 
are  asserted.  It  will  be  seen  that  with  respect  to  certain  of  its 
territorial  waters  a  State  is  not  deemed  to  enjoy  the  same  measure 
of  control  that  it  commonly  asserts  over  its  lands,  and  again, 
that  the  restrictions  to  which  it  is  subjected  in  relation  to  different 
classes  of  water  areas  are  not  identical  in  kind  or  extent.  Thus 
the  duty  of  a  State  to  yield  to  foreign  vessels  a  so-called  innocent 
passage  along  its  marginal  seas  differs  widely  from  that  to  accord 
them  any  privileges  of  navigation  through  a  river  forming  an 
international  boundary. 

At  the  present  time  there  is  evidence  of  fresh  demands  upon 
the  individual  State  to  make  concessions  heretofore  not  regarded 
as  obligatory.  It  is  called  upon  to  permit,  under  conditions  not 
hurtful  to  itself,  foreign  powers  to  make  limited  use  of  the  air 
space  over  the  national  domain,^  and  to  afford  them  also  certain 
privileges  of  transit  by  land.^ 

When  the  limitation  of  the  right  of  control  is  so  widely  recog- 
nized and  uniformly  applied  that  every  foreign  power  may  reason- 
ably demand  observance  of  it  for  the  benefit  of  itself  or  its  nationals, 
it  becomes  unnecessary  to  record  the  fact  in  treaties.  When, 
however,  the  limitation  is  one  which  is  commonly  acknowledged 
to  be  applicable  without  discrimination  solely  in  favor  of  States 
possessed  of  a  special  geographical  or  economic  relationship  to 
the  particular  area  concerned,  the  need  of  an  appropriate  con- 
vention is  usually  conceded.  In  such  case  the  duty  of  the 
territorial  sovereign  to  agree  specifically  with  other  States  within 
the  favored  class,  with  respect  at  least  to  certain  limitations, 
seems  to  be  recognized.  Nevertheless,  it  will  be  found  that 
the  restrictions  of  a  treaty  may  be  such  as  the  territorial  sov- 
ereign is  far  from  acknowledging  the  slightest  obligation  to 
agree  to  impose  upon  itself,  and  which  it  yields  on  grounds  of 
expediency,   or  in   return   for   a   substantial   concession.     Thus 

Buchanan,  Secy,  of  State,  to  Mr.  Calderon  dc  la  Barca,  July  27,  1847,  MS. 
Notes  to  Spain,  VI,  155,  Moore,  Dig.,  I,  746. 

'  Cf.  The  Supremacy  of  the  Territorial  Sovereign  over  the  National  Domain, 
In  General,  infra,  §  199. 

*  Cf.  Air  Space  over  the  National  Domain,  In  General,  infra,  §  188. 

^  Cf.  Transit  by  Land,  In  General,  infra,  §  194. 

273 


§  152]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

conventions  which  register  what  each  of  the  parties  thereto 
appears  to  regard  as  common  and  necessary  limitations  of  the 
exercise  of  control  over  its  domain  by  a  contracting  territorial 
sovereign  are  to  be  distinguished  from  those  which  reveal  no 
such  design. 

That  a  State  is  obliged  to  limit  its  freedom  of  control  over  any- 
thing pertaining  to  its  territory,  such  as  land  or  water  or  air,  is 
due  to  the  interest  qf  the  international  society  in  the  restriction. 
That  interest  has  only  been  acute  when  it  had  been  clearly  and 
widely  perceived  to  be  mutually  advantageous  for  all  States  under 
like  circumstances.  The  clearness  of  the  perception  has  resulted 
from  a  common  understanding  of  commercial  needs  and  has  been 
aided  according  to  their  growth.  Those  needs  early  demanded 
a  right  of  innocent  passage  for  ships  of  every  flag  through  the 
waters  in  close  proximity  to  the  ocean  coasts  of  States  adjacent 
to  the  sea.  Later,  privileges  of  navigation  through  international 
rivers  by  foreign  vessels  of  riparian  and  even  non-riparian  States 
were  increasingly  sought  and  obtained.  In  the  advocacy  of  rele- 
vant principles  American  statesmen  played  no  small  part.  At 
the  present  time,  the  potentialities  of  existing  agencies  of  com- 
munication and  of  transportation  strengthen  the  plea  that  no 
longer  should  any  remote  and  interior  State  remain  isolated  from 
the  sea  when  access  thereto  is  to  be  had  through  foreign  territory, 
by  air  or  by  land,  as  well  as  by  water.  It  will  be  found,  however, 
that  statesmen  still  evince  reluctance  to  impose  fresh  restrictions 
of  universal  application  upon  a  territorial  sovereign  with  re- 
spect to  what  it  has  hitherto  been  deemed  to  possess  rights  of 
exclusive  control,  which  have  been  exercised  with  slight  re- 
straint. The  limitations  thus  far  imposed  by  convention  in 
relation  to  the  use  of  air  space,  or  transit  by  land,  constitute 
concessions  which  the  contracting  parties  would  doubtless  be 
reluctant  to  acknowledge  as  declaratory  of  existing  legal  duties 
towards  each  other. 

The  needs  of  the  international  society  can  never  be  deemed  to 
justify  the  attempt  to  restrict  anew  the  freedom  of  its  individual 
members  in  what  pertains  to  the  control  of  their  respective  terri- 
tories until  it  is  agreed  on  all  sides  not  only  that  the  limitation  is 
beneficial  for  its  entire  membership,  but  also  that  a  failure  to  ap- 
ply it  is  subversive  of  justice  among  the  nations.  Differing  sets 
of  circumstances  may  combine  to  produce  such  conclusions.  It 
suffices  to  observe  that  the  necessary  combination  may  be 
recurrent. 

274 


SERVITUDES  [§  153 

§  153.  The  Same. 

Treaties  which  impose  upon  a  territorial  sovereign  limitations 
of  control  over  its  domain  which  are  not  required  by  international 
law,  either  for  the  sake  of  States  generally,  or  for  that  of  special 
groups  of  them,  differ  widely  in  scope  and  design.  They  may 
embrace  leases  of  particular  areas  in  perpetuity,  vesting  in  the 
lessee  substantial  rights  of  sovereignty ;  ^  they  may  purport  to 
yield  for  all  time  to  the  inhabitants  of  foreign  territory,  as  did  the 
convention  between  the  United  States  and  Great  Britain  of  Octo- 
ber 20,  1818,^  purely  economic  rights  such  as  fishing  privileges 
within  specified  places ;  they  may  confer  a  right  of  passage  across 
territory ;  they  may  burden  the  territorial  sovereign  with  a  duty 
not  to  fortify  places  along  its  frontier ;  ^  they  may  contemplate 
no  arrangement  that  shall  survive  the  time  when  the  grantor 
ceases  to  maintain  its  sovereignty  over  the  territory  concerned. 
When  the  arrangement  purports  to  attach  permanently  to  terri- 
tory or  its  appurtenances  a  restriction  with  respect  to  freedom  of 
control  for  the  benefit  of  a  State  other  than  the  sovereign,  the 
limitation  is  oftentimes  described  as  a  servitude.  There  is  dis- 
agreement, however,  as  to  what  limitations  possessed  of  such  a 
character  may  be  fairly  so  designated.  There  is  controversy 
whether  a  servitude  confers  certain  rights  of  sovereignty  such  as 
those  of  governmental  administrative  control  upon  the  foreign 
State  in  whose  favor  it  is  yielded.^     It  may  be  greatly  doubted, 

^  See,  for  example,  convention  between  the  United  States  and  Panama,  of 
Nov.  18,  1903,  for  the  construction  of  a  ship  canal,  Malloy's  Treaties,  II, 
1.349.     Cf.  Panama,  supra,  §  20. 

2  Malloy's  Treaties,  I,  631. 

3  Art.  42  of  the  Treaty  of  Peace  of  Versailles,  of  June  28,  1919,  whereby 
Germany  was  forbidden  to  maintain  or  construct  any  fortifications  either  on 
the  left  bank  of  the  Rhine  or  on  the  right  bank  to  the  west  of  a  specified  line. 
In  the  area  defined,  the  maintenance  and  the  assembly  of  armed  forces,  either 
permanently  or  temporarily,  and  military  maneuvers  of  any  kind,  as  well 
as  the  upkeep  of  all  permanent  works  for  mobilization,  were  in  the  same  way 
forbidden.     See  Art.  43. 

*  In  the  course  of  the  North  Atlantic  Coast  Fisheries  Arbitration  it  was 
alleged  by  the  United  States  that  the  liberties  of  fishery  granted  to  it  by 
Art.  I  of  the  convention  of  Oct.  20,  1818,  constituted  an  international  servitude 
over  the  territory  of  Great  Britain,  thereby  involving  a  derogation  from  the 
sovereignty  of  Great  Britain,  the  servient  State,  and  that,  therefore.  Great 
Britain  was  deprived,  by  reason  of  the  grant,  of  its  independent  right  to  regu- 
late the  fishery.  The  Tribunal  in  its  award  disagreed  with  this  contention 
for  various  reasons.  It  was  declared  that  there  was  no  evidence  that  the 
doctrine  of  international  servitudes  was  one  with  which  either  American  or 
British  statesmen  were  conversant  in  1818.  It  was  said  that  "a  servitude  in 
international  law  predicates  an  express  grant  of  a  sovereign  right  and  involves 
an  analogy  to  the  relation  of  a  praedium  dominans  and  a  prnedium  serviens; 
whereas  by  the  treaty  of  1818,  one  State  grants  a  liberty  to  fish,  which  is  not  a 
sovereign  right,  but  a  purelv  economic  right,  to  the  inhabitants  of  another 

275 


§  153]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

therefore,  whether,  in  view  of  the  differing  opinions  of  statesmen, 
the  term  serves  to  point  to  definite  Hmitations  of  control  having 
a  distinctive  and  recognizable  character  in  law.  For  that  reason 
its  use  is  believed  to  obscure  rather  than  clarify  the  perception 
of  what  takes  place  when  contracting  States  undertake  to  burden 
territory  with  restrictions  in  favor  of  a  non-territorial  sovereign. 
In  case  of  controversy  concerning  the  nature  and  scope  of  a 
restriction  the  precise  question  is  likely  to  be  first,  whether  the 
limitation  of  control  imposed  by  the  treaty  is  permanent  in  char- 
acter, applicable  for  all  time  to  the  area  concerned,  regardless  of 
changes  of  sovereignty  which  it  may  undergo ;  and  secondly, 
whether  the  arrangement  serves  to  clothe  a  foreign  grantee  with 
privileges  that  are  more  than  economic,  embracing,  for  example, 
rights  of  political  control.  The  solution  of  both  questions  depends 
upon  the  correct  interpretation  of  the  treaty  involved,  an  achieve- 
ment which  in  turn  demands  close  observance  of  those  funda- 
mental principles  of  interpretation  which  are  elsewhere  discussed.^ 
It  may  be  doubted  whether  the  attempt  to  attach  to  territory  a 
burden  to  be  fairly  regarded  by  the  inhabitants  thereof  as  essen- 
tially detrimental  to  it,  and  thus  in  no  sense  responsive  to  any 
equitable  demand  of  the  international  society,  should  be  deemed 
to  be  capable  of  judicial  approval  or  enforcement  in  an  interna- 
tional forum,  even  though  the  validity  of  the  compact  is  recognized. 
Again,  it  may  be  urged  with  force  that  the  grantor  State  lacks 
(in  an  international,  if  not  in  a  domestic  or  constitutional  sense) 
the  power  validly  to  impress  upon  its  territory  such  a  burden  for 
at  least  a  period  beyond  that  when  it  retains  its  sovereignty 
therein. 

State."  It  was  declared  that  the  doctrine  of  international  servitude,  in  the 
sense  sought  to  be  attributed  to  it,  originated  in  the  peculiar  and  obsolete 
conditions  prevailing  in  the  Holy-  Roman  Empire  of  which  the  domini  terrae 
were  not  fully  sovereigns,  they  holding  territory  under  the  Roman  Empire, 
subject  at  least  theoretically,  and  in  some  respects  also  practically,  to  the 
courts  of  that  Empire,  their  right  being  of  a  civil  rather  than  of  a  public  nature, 
partaking  more  of  the  character  of  dominium  than  of  im.perium,  and,  therefore, 
not  a  complete  sovereignty.  In  contra-distinction  to  this  "  quasi-sovereignty  ", 
the  modern  State,  and  particularly  Great  Britain,  it  was  added,  had  never 
admitted  partition  of  sovereignty,  "owing  to  the  constitution  of  a  modern 
State  requiring  essential  sovereignty  and  independence."  It  was  said  that 
"this  doctrine  being  but  little  suited  to  the  principle  of  sovereignty  which 
prevails  in  States  under  a  system  of  constitutional  government  such  as  Great 
Britain  and  the  United  States,  and  to  the  present  international  relations  of 
sovereign  States,  has  found  little,  if  any,  support  from  modern  publicists." 
It  could,  therefore,  it  was  declared,  "in  the  interest  of  the  Community  of 
Nations,  and  of  the  parties  to  this  treaty,  be  affirmed  by  this  Tribunal  only 
on  the  express  evidence  of  an  international  contract."  See  text  of  Award, 
G.  G.  Wilson,  Hague  Arbitration  Cases,  145,  158-159. 

1  The  Interpretation  of  Treaties,  The  Nature  of  the  Problem,  infra,  §  530. 

276 


MARGINAL  SEAS  [§  1.54 

It  must  be  clear  that  when  a  State  by  any  process  bargains 
away  various  uses  of  territory  over  which  it  otherwise  retains  its 
rights  as  sovereign,  it  thereby  impairs  as  such  its  freedom  of  con- 
trol, and  that  the  impairment  corresponding  in  exact  proportion 
to  what  is  yielded  may  even  entail  the  loss  of  a  certain  measure  of 
governmental  control.  Such  a  result  would  appear  to  be  at  va- 
riance with  the  theory  on  which  State  life  has  in  fact  developed, 
and  which  according  to  the  practice  of  nations  has  proved  to  be 
expedient.  INIoreover,  it  would  seem  to  add  to  the  burden  of  the 
territorial  sovereign  of  maintaining  or  acquiring  an  unchallenged 
place  in  that  class  of  States  which  are  regarded  as  independent. 

(2) 
§  154.   Marginal  Seas. 

Over  its  territorial  waters  along  the  marginal  sea  the  control 
of  the  territorial  sovereign  is  limited.^  While  it  may  regulate 
at  will  matters  pertaining  to  fisheries,  the  enjoyment  of  the  under- 
lying land,  coastal  trade,  police  and  pilotage,  the  use  of  partic- 
ular channels,  as  well  as  maritime  ceremonial,^  it  is  not  permitted 
to  debar  foreign  merchant  vessels  from  the  enjoyment  of  what 
is  known  as  the  right  of  "innocent  passage."^  That  right,  al- 
though incidental  to  the  privilege  of  navigating  the  high  seas, 
may  be  said  to  owe  its  existence  to  the  circumstance  that,  as  Hall 
has  pointed  out,  "the  interests  of  the  whole  world  are  concerned 
in  the  possession  of  the  utmost  liberty  of  navigation  for  the  pur- 
poses of  trade  by  the  vessels  of  all  States."  ^ 

Vessels  of  war,  although  serving  no  commercial  purpose,  are  not 
necessarily  deprived  of  the  right  of  passage  under  normal  conditions, 
and  still  less,  other  public  ships  devoted  to  scientific  purposes.' 

1  See,  generall}',  bibliographical  material  referred  to  under  Marginal  Seas, 
supra,  §  141. 

2  Fuller,  C.  J.,  in  Louisiana  v.  Mississippi,  202  U.  S.  1,  52;  the  Mark  Gray 
case,  Venezuelan  Arbitrations,  1903,  Ralston's  Report.,  33,  where  it  was  held 
that  a  State  might  grant  a  monopoly  of  towage  privileges  within  its  territorial 
waters. 

^  Declares  Woolsey :  "No  vessel  pursuing  its  way  on  the  high  seas  can 
commit  an  offense  by  sailing  within  a  marine  league  of  the  shore."  6  ed., 
69.  Said  Mr.  Bayard,  Secy,  of  State,  in  the  course  of  a  communication  to 
Mr.  Manning,  Secy,  of  the  treasury.  May  2S,  1886  :  "We  do  not,  in  asserting 
this  claim  [as  to  the  territorial  limit  of  the  marginal  sea],  deny  the  free  right 
of  vessels  of  other  nations  to  pass,  on  peaceful  errands,  through  this  zone, 
provided  they  do  not  by  loitering  produce  uneasiness  on  the  shore  or  raise  a 
suspicion  of  smuggling."  160  MS.  Dom.  Let.,  348,  Moore,  Dig.,  I,  718,  720, 
721. 

^  Higgins'  7  ed.,  §  42,  p.  163.  See,  also,  Articles  V  and  VIII  of  Rules 
adopted  by  the  Institute  of  International  Law,  March,  1894,  Annuaire,  XIII, 
329-330,  J.  B.  Scott,  Resolutions,  114. 

6  Compare  Hall,  Higgins'  7  ed.,  §  42,  p.  163. 

277 


§  154]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

So  long  as  the  conduct  of  a  vessel  of  any  kind  is  not  essen- 
tially injurious  to  the  safety  and  welfare  of  the  littoral  State, 
there  would  appear  to  be  no  reason  to  exclude  it  from  the  use  of 
the  marginal  sea.  The  Institute  of  International  Law,  in  its  Rules 
adopted  in  1894,  announced  that  all  ships  without  distinction 
should  have  the  right  of  innocent  passage,  saving  to  belligerents 
the  right  of  regulating  passage  and,  with  a  view  to  defense,  of 
forbidding  it  to  any  ship,  and  saving  also  to  neutrals  the  right 
of  regulating  the  passage  of  vessels  of  war  of  every  nationality.'^ 
It  may  be  open  to  question  whether  this  declaration  does  not 
place  too  great  restriction  upon  the  neutral.  It  must  be  apparent 
that  such  a  State  enjoys  the  right  to  prevent  as  well  as  regulate 
the  passage  through  the  marginal  sea  of  a  belligerent  ship  of  what- 
soever kind,  in  case  of  its  failure  to  abstain  from  acts  therein  which 
would,  if  knowingly  permitted  by  the  neutral,  constitute  a  vio- 
lation of  neutrality.^  In  a  word,  the  right  of  so-called  innocent 
passage  vanishes  whenever  the  conduct  of  a  ship  is  harmful  to 
the  territorial  sovereign.  To  the  latter,  whether  a  belligerent  or 
a  neutral,  must  be  accorded  the  right  to  determine  when  acts  of 
a  passing  ship  lose  their  innocent  character. 

It  will  be  observed  that  in  the  assertion  of  that  form  of  control 
manifested  by  the  doing  of  justice  or,  as  it  is  commonly  described, 
by  the  exercise  of  rights  of  jurisdiction,  within  territorial  waters 
constituting  the  marginal  sea,  the  territorial  sovereign  finds  itself 
subjected  to  certain  restraints  with  regard  to  foreign  vessels  and 
their  occupants.  It  will  be  found  that  these  restraints  are  due  in 
part  to  the  activities  of  such  vessels  while  within  such  waters.^ 

(3) 
Straits 

(a) 
§  155.   In  General. 

A  strait  which  serves  as  a  passage  from  one  open  sea  to  another 
ought  not  on  principle  to  be  closed.^  This  is  believed  to  be  true 
although  the  waterway  is  a  part  of  the  domain  of  the  States  adja- 

1  Art.  V,  Annuaire,  XIII,  329,  J.  B.  Scott,  Resolutions,  114. 

2  See  Art.  XXV  of  Hague  Convention  of  1907,  concerning  the  Rights  and 
Duties  of  Neutral  Powers  in  Naval  War,  Malloy's  Treaties,  II,  2362. 

^  Rights  of  Jurisdiction,  The  Marginal  Sea,  infra,  §  226. 

*  Art.  X,  Section  3,  of  Rules  on  the  Definition  and  Regime  of  the  Territorial 
Sea  adopted  by  the  Institute  of  International  Law  in  1894,  Annuaire,  XIII, 
331,  J.  B.  Scott,  Resolutions,  115. 

278 


THE  DANISH  SOUND  DUES  [§  156 

cent  to  it.  It  is  the  relation  which  the  channel  of  communication 
bears  to  navigation  generally  as  a  means  of  access  to  the  seas 
thus  connected  which,  rather  than  any  other  circumstance,  is 
decisive  of  the  equities  of  foreign  maritime  States.  That  a  terri- 
torial sovereign  ought  to  be  permitted  to  protect  itself  as  against 
hostile  acts  in  times  of  peace  or  war,  and  regardless  of  its  status  as 
a  belligerent  or  neutral,  should  be  clear.  The  mode  of  protection 
should,  however,  be  one  designed  to  oppose  the  least  possible 
obstacle  in  the  way  of  navigation.  The  neutralization  of  a  strait 
offers  an  appropriate  means  of  achieving  this  two-fold  object. 

A  channel  of  water,  whether  or  not  described  as  a  strait,  lying 
wholly  within  the  territory  of  a  single  State,  may  afford  a  con- 
venient means  of  access  to,  or  connection  between,  different  parts 
of  the  same  sea  where  it  is  contiguous  to  the  coasts  of  the  same 
State,  and  without  also  becoming  a  necessary  channel  of  communi- 
cation for  international  commerce.  Long  Island  Sound  is  an  in- 
stance. It  is  useful  chiefly  for  coastwise  traffic.  There  would 
seem  to  be  no  obligation  on  the  part  of  the  United  States  to  permit 
foreign  ships  generally  to  pass  through  it  save  on  such  terms  as 
American  authority  may  prescribe.^  That  both  termini  of  a  ter- 
ritorial strait,  as  well  as  the  entire  waterway,  lie  within  the  domain 
of  a  single  State  would  not,  however,  appear  to  create  a  right  to 
bar  the  navigation  of  foreign  ships,  if  two  different  seas  are  thus 
connected  and  the  use  of  the  waterway  a  matter  of  vital  concern  to 
commerce  generally.^  The  Kiel  Canal,  were  it  a  natural  waterway, 
would  be  illustrative.^ 

(b) 

§  156.   The  Danish  Sound  Dues. 

Since  1857  the  navigation  of  the  sound  and  belts  connecting 
the  Baltic  with  the  North  Sea  has  been  free  from  the  duties  pre- 
viously levied  by  Denmark  under  a  claim  of  right  based  upon 
"immemorial  prescription,  sanctioned  by  a  long  succession  of 
treaties  with  foreign  powers."  ^  This  freedom  was  established,  in 
so  far  as  concerned  the  maritime  powers  of  Europe,  by  the  Treaty 

1  Extent  of  the  National  Domain,  Straits,  supra,  §  150. 

2  See  Naval  War  College,  Int.  Law  Topics,  1913,  46. 

'  See  clavises  relating  to  the  Kiel  Canal  in  Arts.  380-386,  of  treaty  of  peace 
with  Germany,  June  28,  1919. 

*  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Flenniken,  Minister  to  Denmark, 
No.  17,  Oct.  14,  1848,  House  Ex.  Doc.  No.  108,  33  Cong.,  38,  39,  Moore, 
Dig.,  I,  659,  661.  Dana's  Wheaton,  262-264 ;  Woolsey,  6  ed.,  77-79 ;  Bonfils- 
Fauchille,  7  ed.,  §  509;  T.  E.  Holland,  Studies  in  International  Law,  277-279; 
Rivier,  I,  158-159. 

279 


§  156]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

of  Copenhagen  of  March  14,  1857,  providing  for  the  capitaHzation 
of  the  Sound  dues ;  ^  and  with  respect  to  the  United  States,  by  its 
treaty  with  Denmark  of  April  11,  1857,  providing  for  the  payment 
by  the  former  of  $393,011,  and  for  the  proper  lighting  and  buoy- 
ing of  the  passages  and  other  necessary  improvements  thereof  by 
Denmark  without  charge.^ 

(c) 

§  157.   The  Bosphorus  and  the  Dardanelles. 

When  Turkey  in  the  eighteenth  century  ceased  to  retain  con- 
trol over  all  of  the  territory  surrounding  the  Black  Sea,  and  the 
waters  thereof  were  no  longer  regarded  as  territorial,  the  Straits 
of  the  Bosphorus  and  the  Dardanelles,  although  remaining  within 
the  Turkish  domain,  formed  a  passage  between  two  open  seas. 
Turkey  necessarily  yielded  the  right  of  navigation  through  those 
waterways  to  foreign  merchant  vessels.  According,  however,  to 
a  series  of  treaties,  of  which  the  first  was  concluded  with  Great 
Britain,  January  5,  1809,  the  European  Powers  agreed  that  Turk- 
ish authority  might  bar  the  passage  of  foreign  vessels  of  war.^ 
By  the  terms  of  the  Treaty  of  London  of  July  13,  1841,  as  well  as 
of  the  Treaty  of  Paris  of  March  30,  1856,  and  that  of  London  of 
March  13,  1871,  the  Sultan  reserved  the  right  to  permit  the  passage 
of  light  vessels  of  war  employed  in  the  service  of  foreign  legations  ; 
and  by  the  terms  of  the  treaty  of  1871,  it  was  declared  that  he  might 
open  the  Straits  in  times  of  peace  to  the  vessels  of  war  of  friendly 
and  allied  powers,  should  he  deem  it  necessary  for  the  execution 
of  the  treaty  of  March  30,  1856.^ 

1  Brit,  and  For.  State  Pap.,  XLVII,  32. 

2  Malloy's  Treaties,  I,  380;  statement  in  Moore,  Dig.,  I,  659-664,  and 
documents  there  cited ;  Dana's  Wheaton,  264-267 ;  correspondence  between 
the  United  States  and  Denmark,  1841-1854,  contained  in  British  and  Foreign 
State  Papers,  XLV,  807-863 ;  Eugene  Schuyler,  American  Diplomacy,  306-316. 

The  right  of  navigation  of  Fuca's  Straits  contained  in  the  treaty  between 
the  United  States  and  Great  Britain  of  June  15,  1846,  was  not,  in  the  opinion 
of  Mr.  Wharton,  Acting  Secy,  of  State,  May  22,  1891,  in  a  communication  to 
the  Secretary  of  the  Treasury,  regarded  as  violated  by  the  prohibition  to  en- 
gage in  the  coasting  trade.    'l82  MS.  Dom.  Let.  79;   Moore,  Dig.,  I,  664. 

^  Nouv.  Rec,  I,  160;  Coleman  Phillipson  and  Noel  Buxton,  The  Question 
of  the  Bosphorus  and  Dardanelles,  London,  1917. 

■•  See  protocol  of  London,  July  10,  1841,  signed  by  plenipotentiaries  of 
Great  Britain,  Austria,  Russia,  Prussia  and  Turkey,  Nouv.  Rec.  Gen.,  XL  126; 
Art.  I,  Treaty  of  London,  July  13,  1841,  concluded  by  Great  Britain,  Austria, 
Prussia  and  Russia,  with  Turkey,  Nouv.  Rec.  Gen.,  II,  128;  Art.  X,  Treaty  of 
Paris,  March  30,  1856,  and  Art.  I  of  convention  annexed  thereto,  Nouv.  Rec. 
Gen.,  XV,  770  and  785 ;  Art.  IL  Treaty  of  London,  March  13,  1871,  Nouv.  Rec. 
Gen.,  XVIII,  303,  305;  T.  E.  Holland,  The  European  Concert  in  the  Eastern 
Question,  224-226;  Eugene  Schuyler,  American  Diplomacv,  317-328;  Moore, 
Dig.,  I,  664-666;   Maurice  Loze,  La  question  des  detroits,  Paris,  1908. 

280 


POSITION  OF  THE  UNITED  STATES  [§  158 

The  position  of  the  United  States,  in  the  years  preceding  The 
World  War,  appears  to  have  been  one  of  reluctant  acquiescence.^ 
Secretaries  Cass  and  Fish  were  unwilling  to  admit  the  right  of 
Turkey,  in  conjunction  with  a  group  of  European  Powers,  by 
means  of  conventions  to  which  the  United  States  was  not  a  party, 
to  bar  the  passage  of  American  vessels  of  war  through  the  Straits.^ 
Moreover,  certain  requests  made  by  American  naval  command- 
ers and  addressed  to  Turkish  authorities,  for  permission  to  pass 
through  the  Dardanelles,  were  said  to  have  been  unauthorized.^ 
On  two  occasions,  however,  in  1895,  permission  was  requested  by 
the  American  Minister  at  Constantinople,  without  the  apparent 
disapproval  of  the  Department  of  State.  In  both  instances  con- 
sent was  refused.* 

President  Wilson,  in  his  address  to  the  Congress  on  conditions 
of  peace,  January  8,  1918,  declared  that  "the  Dardanelles  should 
be  permanently  opened  as  a  free  passage  to  the  ships  and  com- 
merce of  all  nations  under  international  guarantees."  ^ 

§  158.   The  Same. 

According  to  the  Turkish  treaty  of  peace  signed  at  Sevres, 
August  10,  1920,  the  navigation  of  the  Straits,  including  the  Dar- 
danelles, the  Sea  of  Marmora,  and  the  Bosphorus,  were  to  be 
opened  in  time  of  peace  and  war,  to  every  vessel  of  commerce  or 
of  war,  and  to  military  and  commercial  aircraft  without  distinction. 
These  waters  were  not  to  be  blockaded ;  nor  was  any  belligerent 
right  or  act  of  hostility  to  be  committed  therein,  "unless  in  pursu- 

^  Mr.  Fish,  in  the  course  of  a  communication  to  Mr.  Boker,  Minister  to 
Turkey,  Jan.  3,  1873,  declared:  "The  right  [of  Turkey],  however,  has  for  a 
long  time  been  claimed  and  has  been  sanctioned  by  treaties  between  Turkey 
and  certain  European  States.  A  proper  occasion  may  arise  to  dispute  the 
applicability  of  the  claim  to  United  States  men-of-war.  Meanwhile  it  is 
deemed  expedient  to  acquiesce  in  the  exclusion."  MS.  Inst.  Turkey,  II,  452, 
Moore,  Dig.,  I,  667. 

2  Mr.  Cass,  Secy,  of  State,  to  Mr.  Pickens,  Minister  to  Russia,  Jan.  14, 
1859,  MS.  Inst.  Russia,  XIV,  159,  Moore,  Dig.,  I,  665;  Mr.  Fish,  Secv.  of 
State,  to  Mr.  McVeagh,  Minister  to  Turkey,  No.  29,  May  5,  1871,  For.  Rel. 
1871,  902,  Moore,  Dig.,  I,  666;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Boker, 
Minister  to  Turkey.  Jan.  25,  1873,  MS.  Inst.  Turkey,  II,  456,  Moore,  Dig., 
i,  668.  Compare  Mr.  McVeagh,  Minister  to  Turkey,  to  Mr.  Fish,  Secv.  of 
State,  Jan.  24,  1871,  and  March  27,  1871,  For.  Rel.  1871,  892  and  897,  Moore, 
Dig.,  I,  667,  note. 

3  Mr.  Fish,  Secy,  of  State,  to  Mr.  Boker,  Minister  to  Turkey,  Jan.  3,  1873, 
MS.  Inst.  Turkey,  II,  452,  Moore,  Dig.,  I,  667;  Same  to  Same,  Jan.  25,  1873, 
MS.  Inst.  Turkey,  II,  456,  Moore,  Dig.,  I,  668. 

*  Mr.  Terrell,  Minister  to  Turkey,  to  Mr.  Olnev,  Secy,  of  State,  Nov.  21, 
and  Dec.  6,  1895,  concerning  the  U.  S.  S.  Marblehead,  For.  Rel.  1895,  II.  1344 
and  1383,  Moore,  Dig.,  I,  668;  Mavroveni  Bev,  Turkish  Minister,  to  Mr. 
Olney,  Secv.  of  State,  Jan.  16,  1896,  concerning  the  U.  S.  S.  Bancroft,  For. 
Rel.  1895,  il,  1461,  Moore,  Dig.,  I,  668,  note. 

6  Official  Bulletin,  Jan.  8,  1918. 

281 


§  158]     GENERAL   RIGHTS   OF   PROPERTY    AND    CONTROL 

ance  of  a  decision  of  the  Council  of  the  League  of  Nations."  ^  A 
so-called  "Commission  of  the  Straits"  was  to  exercise  control  in 
the  name  of  the  Turkish  and  Greek  Governments,  and  with 
authority  over  all  waters  between  the  Mediterranean  mouth  of 
the  Dardanelles  and  the  Black  Sea  mouth  of  the  Bosphorus,  em- 
bracing waters  within  three  miles  of  the  mouths.^  The  Commis- 
sion was  accorded  complete  independence  of  local  authority  in 
the  exercise  of  its  powers,  and  concerning  its  own  flag,  budget 
and  organization.^  The  Commission  was  to  inform  the  represent- 
atives of  the  Allied  Powers  in  case  of  interference  with  the  right 
of  passage  through  the  Straits,  as  a  means  of  invoking  their  forci- 
ble aid."*  In  matters  of  navigation  all  ships  were  to  be  treated 
on  terms  of  absolute  equality ;  ^  and  the  levying  of  any  dues  or 
charges  was  to  be  without  discrimination.^  The  transit  of  vessels 
of  war  was  to  be  in  conformity  with  the  regulations.^  The  con- 
ditions established  for  the  transit  of  belligerent  vessels  of  war 
were  specified  in  terms  resembling  those  of  the  Suez  Canal  Con- 
vention of  October  29,  1888,  subject,  however,  to  the  reservation 
that  they  should  not  limit  belligerent  rights  exercised  in  pursu- 
ance of  a  decision  of  the  Council  of  the  League  of  Nations.^ 

(4) 
Navigation  of  Rivers 

(a) 
§  159.   National  Streams. 

When  the  entire  course  of  a  river  is  within  the  territory  of  a 
single  State,  it  is  generally  agreed  that  a  right  of  exclusive  control 

1  Arts.  37-61.     The  treaty  remains  as  yet  unratified. 

2  Arts.  38-39.  The  Commission  was  to  be  composed  of  representatives  of 
the  United  States  (if  it  should  be  willing),  Great  Britain,  France,  Italy,  Japan, 
Russia  (when  belonging  to  the  League  of  Nations),  Greece,  Roumania,  Bul- 
garia and  Turkey  (when  the  last  two  should  belong  to  the  League  of  Nations). 
Art.  40.  Each  Power  was  to  appoint  one  representative  ;  but  representatives 
of  the  United  States,  Great  Britain,  France,  Italy,  Japan  and  Russia  were  to 
have  two  votes  each,  while  representatives  of  the  other  three  Powers  were 
to  have  one  vote  each.  Large  rights  of  administrative  control  were  con- 
ferred upon  the  Commission.     Art.  43. 

3  Art.  42. 

*  Art.  44.  The  Commission  was  clothed  with  power  to  acquire  property 
or  permanent  works,  raise  loans,  and  levy  dues.  Art.  45.  Functions  formerly 
exercised  by  certain  specified  sanitary  organizations  were  to  be  discharged 
under  the  control  of  the  Commission  which  was  to  cooperate  with  the  League 
of  Nations  in  measures  for  the  combating  of  diseases.  Art.  46.  Provision 
was  made  with  respect  to  the  exercise  of  jurisdiction.     Arts.  49-50. 

5  Art.  52.  6  Art.  54. 

^  Art.  56.  8  Arts.  57-60. 

282 


PRELIMINARY  [§  160 

is  possessed  by  the  territorial  sovereign,  which  may,  therefore, 
lawfully  close  the  navigation  of  the  stream  to  foreign  ships.  Any 
privilege  of  transit  enjoyed  by  them  must  be  regarded  as  due  to 
the  consent  of  that  sovereign.^ 


(b) 
International  Streams  of  North  America 

(i) 
§  160.     Preliminary. 

When  a  navigable  river  flows  through  the  territory  of  two  or 
more  States,  or  forms  an  international  boundary,  the  broad  ques- 
tion arises  as  to  the  nature  and  extent  of  the  right  of  one  of  them  to 
exercise  privileges  of  navigation  within  waters  outside  of  the  na- 
tional domain,  whether  downstream  or  upstream,  or  on  the  oppo- 
site side  of  a  line  of  demarcation.  The  inquiry  also  arises  respect- 
ing the  claims  of  non-riparian  States.^ 

1  "It  is  not  doubted  that  rivers  such  as  the  Hudson  and  the  Mississippi, 
which  are  navigable  only  within  the  territory  of  one  country,  are  subject  to 
that  country's  exclusive  control."  J.  B.  Moore,  Principles  of  American 
Diplomacy,  1918,  130.  Mr.  Foster,  Secy,  of  State,  to  Sir  Julian  Pauncefote, 
British  Minister,  at  Washington,  Dec.  31,  1892,  For.  Rel.  1892,  335,  337; 
Moore,  Dig.,  I,  626-627;   Oppenheim,  2  ed.,  I,  §  176. 

Compare  instructions  of  Mr.  Clay,  Secy,  of  State,  to  Mr.  Gallatin,  Minister 
to  Great  Britain,  June  19,  1826,  American  State  Pap.,  For.  Rel.,  VI,  762,  763. 

^  Concerning  the  navigation  of  international  rivers  generally,  see  Alphonse 
Berges,  Du  Regime  de  Navigation  des  Fleuves  Internationaux,  Toulouse,  1902 ; 
J.  C.  Carlomagno,  El  Derecho  Fluvial  Internacional,  with  bibliography,  Buenos 
Aires,  1913 ;  fitienne  Caratheodory,  Du  Droit  International  Concernant  les 
Grands  Cours  d'Eau,  Leipzig,  1861 ;  Ed.  Engelhardt,  Du  Regime  Conrentionnel 
des  Fleuves  Internationaux,  Paris,  1879;  Histoire  du  Droit  Fluvial  Conven- 
tionnel,  Paris,  1889 ;  G.  Kaeckenbeeck,  International  Rivers,  Grotius  Society 
PubUcations,  No.  1,  London,  1918  (subjected  to  a  notable  review  by  Joseph  P. 
Chamberlain,  in  Yale  L.  J.,  XXVIII,  519) ;  Ismael  L6pez,  Regimen  Inter- 
nacional de  los  Rios  Navegables,  Bogota,,  1905;  F.  M.  Ogilvie,  International 
Waterways,  New  York,  1920;  Pierre  Orban,  Stude  de  Droit  Fluidal  Inter- 
national, with  bibliography,  Paris,  1896;  J.  Vallotton,  "  Du  Regime  Juridique 
des  Cours  d'Eau  Internationaux  de  V Europe",  Rev.  Droit  Int.,  2  ser.,  XV,  271. 

See,  also,  Bonfils-Fauchille,  7  ed.,  1914,  §§520-531,  with  bibliographv ; 
Calvo,  5  ed.,  I,  433-465;  Cbmet,  Tables  Generales,  I,  462-465,  882-883;  Hall, 
Higgins'  7  ed.,  §§  38,  39;  Martens,  II,  345-355;  J.  B.  Moore,  Principles  of 
American  Diplomacy,  New  York,  1918,  130-134;  Dig.  of  Int.  Law,  I,  §§  128- 
132;  E.  Nys,  "Les  fleuves  internationaux  traversant  plusieurs  territoires", 
Rev.  Droit  Int.,  2  ser.,  V,  517;  Le  Droit  International,  I,  423-437;  Oppenheim, 
2  ed.,  I,  §§  176-181,  with  bibliographv;  Rivier,  I,  221-229;  Eugene  Schuvler, 
American  Diplomacv,  New  York,  1886,  26.5-305,  319-366;  Dana's  Wheaton, 
274-288;  Woolsey,'6  ed.,  79-83.  Also  Draft  of  International  Regulations 
for  the  Navigation  of  Rivers,  adopted  bv  the  Institute  of  International  Law 
at  Heidelberg  in  1887,  Anyiuaire,  IX,  182,"'J.  B.  Scott,  Resolutions,  78 ;  Resolu- 
tions adopted  by  the  Institute  at  Madrid  in  1911,  on  the  subject  of  Inter- 
national Regulation  of  the  Use  of  International  Streams,  Annuaire,  XXIV, 
365,  J.  B.  Scott,  Resolutions,  168. 

283 


§  160]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

In  testing  the  pretensions  of  claimant  States  by  the  practice  of 
the  past  hundred  years,  it  will  be  found  that  not  infrequently 
there  has  been  a  willingness  to  yield  principle  for  the  sake  of  actual 
privileges  greatly  needed.  Those  accorded  have  commonly  been 
acknowledged  by  treaty.  Inasmuch  as  conventional  arrange- 
ments have  been  shaped  according  to  geographical  and  commer- 
cial considerations,  and  in  response  to  the  particular  requirements 
of  the  contracting  parties,  there  has  been  lack  of  uniformity  of 
action  save  with  respect  to  navigation  through  rivers  offering  the 
same  fundamental  problems  peculiar  to  the  same  continent.  Nev- 
ertheless, from  the  conventions  illustrative  of  the  practice  observed, 
it  is  believed  to  be  possible  to  draw  conclusions  indicating  the 
extent  to  which  riverain  States  appear  to  respect  an  obligation 
to  consent  to  the  exercise  of  privileges  of  navigation  within  their 
respective  waters  by  vessels  under  foreign  flags. 

(ii) 
§  161.    The  Mississippi. 

According  to  Article  VIII  of  the  treaty  of  peace  between  the 
United  States  and  Great  Britain,  of  September  3,  1783,  it  was 
agreed  that  the  navigation  of  the  ]\Iississippi,  from  its  source  to 
the  ocean,  should  forever  "remain  free  and  open  to  the  subjects 
of  Great  Britain  and  to  the  citizens  of  the  United  States."  ^  By 
virtue  of  its  treaty  of  the  same  year  with  Great  Britain,  Spain 
acquired  east  and  west  Florida,  becoming  thereby  the  riparian 
sovereign  on  both  sides  of  the  IMississippi  at  its  mouth .^  The 
United  States  thereupon  sought  Spanish  recognition  of  a  right  of 
navigation  through  the  lower  waters  to  the  sea.  That  claim, 
vigorously  advocated  by  j\Ir.  Jefferson,  then  Secretary  of  State, 
was  said  to  rest  upon  the  law  of  nature  and  of  nations.^     After 

1  Malloy's  Treaties,  I,  589. 

2  Letter  from  the  Minister  of  Spain  to  Mr.  Pickering,  Secy,  of  State,  May  6, 
1797,  American  State  Pap.,  For.  Rel.,  II,  14-15. 

'  Mr.  Jefferson,  Secretary  of  State,  in  support  of  the  claim  of  his  Govern- 
ment, relied  first,  upon  Article  V  of  the  treaty  between  Great  Britain  and 
France  of  Feb.  10,  1763,  providing  for  free  navigation  of  the  Mississippi 
by  the  subjects  of  those  countries ;  secondly,  upon  the  treaty  of  peace  between 
the  United  States  and  Great  Britain  of  1782-1783 ;  and  finally  upon  the  "law 
of  nature  and  nations."  He  asserted  that  the  sentiment  was  written  in  deep 
characters  on  the  heart  of  man  that  "the  ocean  is  free  to  all  men,  and  their 
rivers  to  all  their  inhabitants."  Accordingly  he  declared  that :  "When  their 
rivers  enter  the  limits  of  another  society,  if  the  right  of  the  upper  inhabitants 
to  descend  the  stream  is  in  any  case  obstructed,  it  is  an  act  of  force  by  a 
stronger  society  against  a  weaker,  condemned  by  the  judgment  of  mankind." 
He  said  that  the  writers  on  the  subject  were  agreed  that  an  innocent  passage 
along  a  river  was  the  natural  right  of  those  inhabiting  its  borders  above ;  that 

284 


THE  MISSISSIPPI  [§  161 

protracted  discussions,  a  treaty  was  concluded  October  27,  1795. 
With  respect  to  the  Mississippi  is  was  provided  in  Article  IV  that  — 

His  Catholic  Majesty  has  likewise  agreed  that  the  navigation 
of  the  said  river,  in  its  whole  breadth  from  its  source  to  the 
ocean,  shall  be  free  only  to  his  subjects  and  citizens  of  the  United 
States,  unless  he  should  extend  this  privilege  to  the  subjects 
of  other  powers  by  special  convention.^ 

According  to  Article  III  of  the  Jay  Treaty,  concluded  with  Great 
Britain  November  19,  1794,  the  United  States  had  agreed  that  the 
Mississippi  should,  "according  to  the  treaty  of  peace,  be  entirely 
open  to  both  parties."  ^ 

In  1796,  the  United  States  and  Great  Britain  annexed  to  the 
Jay  Treaty  an  explanatory  Article  relative  to  the  navigation  of 
the  rivers  and  waters  of  the  contracting  parties,  and  to  the  effect 
that  no  stipulations  in  any  convention  subsequently  concluded 
by  either  of  the  contracting  parties  with  any  other  State  could 
be  understood  to  derogate  in  any  manner  from  the  rights  of  com- 
merce and  navigation  of  their  respective  citizens  and  subjects 
and  for  which  provision  had  been  made  in  the  Jay  Treaty.^  Spain 
made  complaint,  contending  that  this  Article  was  contrary  to  the 
treaty  with  the  United  States  of  1795,  and  which,  it  was  declared, 
was  the  basis  of  the  American  right  of  navigation.^ 

It  may  be  observed  that  the  treaties  concluded  by  the  United 
States  with  both  Great  Britain  and  Spain  purported  to  secure 

although  this  right  was  regarded  as  an  inherited  one,  inasmuch  as  the  modifica- 
tion of  its  exercise  depended  to  a  large  degree  on  the  convenience  of  the  nation 
through  whose  territory  foreign  vessels  passed,  it  was,  nevertheless,  "still  a 
right  as  real  as  any  other  right,  however  well  defined ;  and  were  it  to  be  refused, 
or  to  be  so  shackled  by  regulations,  not  necessary  for  the  peace  or  safety  of  its 
inhabitants,  as  to  render  its  use  impracticable  to  us,  it  would  then  be  an  injury, 
of  which  we  should  be  entitled  to  demand  redress.  The  right  of  the  upper 
inhabitants  to  use  this  navigation  is  the  counterpart  to  that  of  those  possessing 
the  shores  below,  and  founded  in  the  same  natural  relations  with  the  soil  and 
water."  He  said  also  :  "We  might  add,  as  a  fifth  sine  quanon,  that  no  phrase 
should  be  admitted  in  the  treaty  which  could  express  or  imply  that  we  take 
the  navigation  of  the  Mississippi  as  a  grant  from  Spain.  But,  however  dis- 
agreeable it  would  be  to  subscribe  to  such  a  sentiment,  yet,  were  the  conclusion 
of  a  treaty  to  hang  on  that  single  objection,  it  would  be  expedient  to  waive 
it,  and  to  meet,  at  a  future  day,  the  consequences  of  any  resumption  they  naay 
pretend  to  make,  rather  than  "at  present,  those  of  a  separation  without  coming 
to  any  agreement."  Instructions  to  Messrs.  Carmichael  and  Short,  com- 
missioners to  negotiate  a  treaty  with  Spain,  Mar.  18,  1792.  American  State 
Pap.,  For.  Rel.,  I,  252-257. 

»  Malloy's  Treaties,  II,  1642.  ^  Malloy's  Treaties,  I,  592. 

'  Malloy's  Treaties,  I,  607. 

*  Correspondence  in  1797,  between  Mr.  Pickering,  Secy,  of  State,  and  the 
Spanish  Minister,  American  State  Pap.,  For.  Rel.,  II,  14-15,  16-17. 

285 


§  161]     GENERAL   RIGHTS    OF    PROPERTY    AND    CONTROL 

rights  of  navigation  for  the  benefit  of  the  contracting  parties  ex- 
clusively. No  statement  of  principle  as  to  the  freedom  of  naviga- 
tion of  international  rivers  was  made.  Moreover,  the  language 
of  the  convention  of  1795  gave  some  color  to  the  Spanish  claim 
that  the  American  right  to  navigate  the  jNIississippi  was  in  the 
nature  of  a  grant  from  His  Catholic  ^Majesty. 

Through  the  acquisition  of  Louisiana  and  the  Floridas,  by  virtue 
of  treaties  respectively  with  France,  of  April  30,  1803,  and  with 
Spain,  of  February  22,  1819,  the  United  States  found  the  JNIissis- 
sippi wholly  within  its  own  domain.  The  river  ceased  to  be  an 
international  stream.^ 

(iii) 
§  162.   The  St.  Lawrence. 

Between  1823  and  1827,  the  United  States  made  vigorous  effort 
to  secure  from  Great  Britain  recognition  of  a  right  to  navigate 
the  lower  waters  of  the  St.  Lawrence.  In  view  of  the  principles 
ably  enunciated  yet  vainly  advocated  by  Secretaries  Adams  and 
Clay,  as  well  as  by  Messrs.  Rush  and  Gallatin,  the  basis  of  the 
subsequent  arrangement  was  significant.^  By  means  of  sacrifices 
doubtless  regarded  as  offering  suflEicient  compensation  to  British 
interests,  the  United  States,  through  Article  IV  of  the  reciprocity 
treaty  of  June  5,  1854,  secured  temporarily  the  privilege  of  free 
navigation.^ 

1  It  had  been  supposed  by  the  negotiators  of  the  earliest  treaty  between  the 
United  States  and  Great  Britain,  that  the  source  of  the  Mississippi  was  in 
Canada,  and  it  was,  therefore,  agreed  that  the  boundary  Une  should  run  from 
the  most  northwestern  point  of  the  Lake  in  the  Woods  on  a  due  west  course 
to  the  Mississippi.  As  a  matter  of  fact,  such  a  Une  could  not  touch  or  intersect 
that  river,  inasmuch  as  its  waters  were  wholly  south  thereof.  Moore,  Dig.,  I, 
625 ;   also  Moore,  Arbitrations,  I,  705-707. 

2  See  documents  communicated  to  the  House  of  Representatives  by  Presi- 
dent J.  Q.  Adams,  Jan.  7,  1828,  American  State  Pap.,  For.  Rel.,  VI,  757-777. 
It  is  believed  that  the  cause  of  an  upstream  State  was  never  more  forcibly 
pleaded  than  by  the  American  secretaries  and  plenipotentiaries  of  this  period. 
Attention  is  particularly  called  to  a  memorandum  prepared  by  Mr.  Rush  and 
submitted  to  the  British  plenipotentiaries  in  1824.  Id.,  7G9-772.  In  the 
course  of  it  he  said:  "The  right  of  the  upper  inhabitants  to  the  full  use  of 
the  stream  rests  upon  the  same  imperious  wants  as  that  of  the  lower;  upon 
the  same  intrinsic  necessity  of  participating  in  the  benefits  of  this  flowing 
element.  Rivers  were  given  for  the  use  of  all  persons  living  in  the  country 
of  which  they  make  a  part,  and  a  primary  use  of  navigable  ones  is  that  of 
external  commerce.  The  public  good  of  nations  is  the  object  of  the  law  of 
nations,  as  that  of  individuals  is  of  municipal  law.  The  interest  of  a  part 
gives  way  to  that  of  the  whole ;  the  particular  to  the  general.  The  former  is 
subordinate;  the  latter  paramount.  This  is  the  principle  pervading  every 
code,  national  or  municipal,  whose  basis  is  laid  in  moral  right,  and  whose  aim 
is  the  universal  good." 

'  Malloy's  Treaties,  I,  671.  The  provisions  of  Article  IV  for  the  naviga- 
tion of  the  St.  Lawrence  and  Canadian  canals  used  as  a  means  of  communica- 

286 


THE  ST.  LAWRENCE  [§  162 

According  to  Article  XXVI  of  the  Treaty  of  Washington,  of 
May  8,  1871,  the  navigation  of  the  St.  Lawrence  ascending  and 
descending  to  and  from  the  sea,  from  the  point  where  the  river 
ceased  to  be  the  international  boundary  — 

Shall  forever  remain  free  and  open  for  the  purposes  of  com- 
merce to  the  citizens  of  the  United  States,  subject  to  any  laws 
and  regulations  of  Great  Britain  or  of  the  Dominion  of  Canada 
not  inconsistent  with  such  privilege  of  free  navigation.^ 

In  Article  I  of  the  convention  concluded  January  11,  1909, 
concerning  the  boundary  waters  between  the  United  States  and 
Canada,  it  was  declared  that  the  navigation  of  all  navigable  bound- 
ary waters  should 

forever  continue  free  and  open  for  the  purposes  of  commerce 
to  the  inhabitants  and  to  the  ships,  vessels,  and  boats  of  both 
countries  equally,  subject,  however,  to  any  laws  and  regula- 
tions of  either  country,  within  its  own  territory,  not  inconsistent 
with  such  privilege  of  free  navigation  and  applying  equally  and 
without  discrimination  to  the  inhabitants,  ships,  vessels,  and 
boats  of  both  countries.^ 

It  was  further  agreed  that  so  long  as  the  treaty  should  remain 
in  force,  the  same  right  of  navigation  should  extend  to  the  waters 
of  Lake  Michigan  and  to  all  canals  connecting  boundary  waters, 
then  existing  or  which  might  thereafter  be  constructed  on  either 
side  of  the  line.^ 

tion  between  the  Great  Lakes  and  the  Atlantic,  by  citizens  and  inhabitants 
of  the  United  States  on  the  same  basis  as  British  subjects,  contained  also  the 
declaration  that  the  British  Government  retained  the  right  to  suspend  the 
privilege  on  giving  due  notice  thereof,  and  that  in  case  of  such  suspension  the 
United  States  might  suspend  also  the  operation  of  Article  III  (providing  for 
the  free  admission  of  certain  specified  articles  into  the  British  Colonies  and 
into  the  United  States),  for  such  period  as  the  rights  of  navigation  were  sus- 
pended. Article  IV  also  gave  to  British  subjects  the  right  to  navigate  Lake 
Michigan  for  a  term  of  years.  The  United  States  engaged  to  urge  the  State 
Governments  to  give  British  subjects  the  use  of  the  State  canals  on  terms  of 
equality  with  the  inhabitants  of  the  United  States.  It  was  further  agreed 
that  duties  should  not  be  levied  by  Great  Britain  on  Maine  lumber  floated 
down  the  river  St.  John  and  its  tributaries  when  shipped  to  the  United  States 
from  New  Brunswick.  Concerning  this  Article  see  comment  of  Hall,  Higgins' 
7  ed.,  §  39. 

1  Malloy's  Treaties,  I,  71L  ^  Charles'  Treaties,  40. 

3  It  was  also  provided  that  either  of  the  contracting  parties  might  adopt 
rules  and  regulations  governing  the  use  of  such  canals  within  its  own  terri- 
tory and  charge  tolls  for  the  use  thereof,  l)ut  that  all  such  rules  and  regula- 
tions and  all  tolls  charged  should  apply  alike  to  the  nationals  of  the  contracting 
parties,  and  to  the  ships,  vessels  and  boats  of  both  of  those  parties,  and  that 
they  should  be  placed  on  terms  of  equality  in  the  use  thereof.     Id. 

287 


§  163]     GENERAL   RIGHTS   OF   PROPERTY    AND    CONTROL 

(iv) 

§  163.  The  Yukon,  the  Porcupine  and  the  Stikine.  The 
St.  John.     The  Columbia. 

Article  XXVI  of  the  treaty  with  Great  Britain  of  May  8,  1871, 
provided  for  the  free  navigation  forever  of  the  rivers  Yukon, 
Porcupine  and  Stikine,  ascending  and  descending  to  the  sea,  to 
the  citizens  and  subjects  of  the  two  countries,  subject  to  any  regu- 
lations of  either  within  its  own  territory  not  inconsistent  with  free 
navigation.  Thus,  the  United  States,  the  lower  riparian  proprietor 
of  those  Alaskan  rivers,  secured  a  right  of  navigation  through  the 
upper  waters  wholly  within  British  territory.^ 

Article  III  of  the  treaty  between  the  United  States  and  Great 
Britain  of  August  9,  1842,  provided  that  where  the  river  St.  John 
formed  the  boundary  line  between  the  territories  of  the  contract- 
ing parties,  navigation  should  be  free  and  open  to  both.  It  was 
provided  that  the  produce  of  the  forest  or  of  agriculture  ("not 
being  manufactured")  grown  in  such  parts  of  the  State  of  Maine 
as  might  be  watered  by  the  river  or  its  tributaries,  should  have 
free  access  into  and  through  the  St.  John  and  its  tributaries  having 
their  source  within  the  State  of  IMaine,  to  and  from  the  seaport 
at  the  mouth  of  the  river,  and  to  and  around  the  falls  of  the  river, 
by  boats,  rafts  or  other  conveyance.  Such  produce  while  within 
the  Province  of  New  Brunswick  was  to  be  treated  as  if  it  were  the 
produce  of  that  Province.  In  like  manner  the  inhabitants  of  the 
territory  of  the  upper  St.  John,  where  the  river  was  a  British  stream, 
were  to  have  access  to  and  through  the  river  for  their  produce 
where  the  river  ran  wholly  through  the  State  of  Maine.  It  was 
declared  that  the  treaty  should  not  give  to  either  party  a  right  to 
interfere  with  any  regulations  not  inconsistent  with  the  terms  of 
the  agreement,  and  w^hich  the  Governments  of  IMaine  and  New 

^  Malloy's  Treaties,  I,  711.  "This  stipulation  is  understood  to  secure  'the 
right  of  access  and  passage',  but  not  'the  right  to  share  in  the  local  traffic' 
between  American  and  British  ports,  as  the  case  may  be."  Moore,  Dig.,  I, 
635,  citing  Mr.  Adee,  Second  Assist.  Secy,  of  State,  to  Mr.  Woodbury,  Jan.  6, 
1898,  224  MS.  Dom.  Let.  229.  Concerning  the  whole  article  see,  also,  Eugene 
Schuyler,  American  Diplomacy,  290-291. 

Article  XXVII  contained  an  engagement  by  the  British  Government  to 
urge  upon  that  of  the  Dominion  to  secure  for  the  inhabitants  of  the  United 
States  on  terms  of  equality  with  those  of  the  Dominion  the  use  of  the  Welland, 
St.  Lawrence  and  other  canals ;  the  United  States,  on  the  other  hand,  engag- 
ing that  British  subjects  might  on  similar  terms  enjoy  the  use  of  the  St.  Clair 
Flats;  and  agreeing  also  to  urge  the  State  Governments  to  secure  for  such 
subjects,  on  like  terms,  the  use  of  the  several  State  canals  connected  with  the 
navigation  of  the  lakes  or  rivers  traversed  by  or  contiguous  to  the  international 
boundary.     Malloy's  Treaties,  I,  711. 

288 


THE  COLORADO  AND  THE  RIO  GRANDE  [§  164 

Brunswick  might  make  respecting  the  navigation  of  the  river  where 
both  banks  should  belong  to  the  same  party.^ 

According  to  Article  II  of  the  treaty  between  the  United  States 
and  Great  Britain  of  June  15,  1846,  the  north  branch  of  the  Colum- 
bia River  within  American  territory  as  far  as  the  junction  with 
the  main  stream,  and  thence  down  that  stream  to  the  sea,  was 
opened  to  the  Hudson's  Bay  Company  and  to  all  British  subjects 
"trading  with  the  same",  subject,  however,  to  such  regulations 
not  inconsistent  with  the  treaty  as  the  United  States  might  pre- 
scribe.^ Attention  has  been  called  to  the  fact  that  the  treaty 
contained  no  stipulation  concerning  the  navigation  of  the  upper 
waters  of  the  stream  within  British  territory.^ 

(v) 

§  164.   The  Colorado  and  the  Rio  Grande. 

By  the  treaty  with  INIexico  of  Guadalupe-Hidalgo,  of  February 
2,  1848,  the  United  States,  as  the  upper  riparian  proprietor,  se- 
cured a  right  of  navigation  through  the  lower  waters  of  the  Colo- 
rado River  below  its  confluence  with  the  Gila,  to  and  through  the 
Gulf  of  California.  No  provision  was  made,  however,  for  the 
navigation  by  the  inhabitants  of  Mexico  of  the  upper  waters  of 
the  Colorado  within  the  territory  of  the  United  States."*  It  was 
declared  that  the  river  Gila,  and  the  part  of  the  Rio  Grande 
(described  as  the  Rio  Bravo  del  Norte)  lying  below  the  southern 
boundary  of  New  Mexico,  should  be  "free  and  common  to  the  ves- 
sels and  citizens  of  both  countries",  and  that  neither  should,  "with- 
out the  consent  of  the  other,  construct  any  work  that  may  impede 
or  interrupt,  in  whole  or  in  part,  the  exercise  of  this  right ;    not 

^  Malloy's  Treaties,  I,  653.  Concerning  the  right  of  New  Brunswick  under 
the  treaty  to  impose  an  export  duty  on  all  timber  shipped  from  the  Province, 
including  that  floated  down  from  Maine,  see  Moore,  Dig.,  I,  636-637,  and  docu- 
ments there  cited. 

Art.  XXXI  of  the  treaty  of  May  8,  1871,  contained  an  engagement  by 
Great  Britain  to  urge  upon  the  Parliament  of  the  Dominion  and  the  Legislature 
of  New  Brunswick  that  no  export  or  other  duty  should  be  imposed  on  lumber 
of  any  kind  in  that  part  of  Maine  watered  by  the  St.  John  and  its  tributaries; 
and  floated  down  that  river  to  the  sea,  when  the  same  was  shipped  to  the 
United  States  from  the  Province  of  New  Brunswick.  Malloy's  Treaties,  I, 
713. 

2  Malloy's  Treaties,  I,  657. 

'  See  statement  by  J.  B.  Moore  in  Moore,  Dig.,  I,  639.  Concerning  the 
claims  of  the  Hudson's  Bay  Co.,  c/.  Moore,  Arbitrations,  I,  253,  262.  See 
communication  of  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Lundy,  July  25,  1885, 
156  MS.  Dom.  Let.  358,  Moore,  Dig.,  I,  639,  in  which  a  distinction  is  made 
between  the  rights  of  the  upper  and  lower  riparian  inhabitants. 

*  Art.  VI,  Malloy's  Treaties,  I,  1111. 

VOL.  I  —  10  289 


§  164]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

even  for  the  purpose  of  favoring  new  methods  of  navigation."  ^ 
By  the  Gadsden  Treaty  of  December  30,  1853,  the  United  States 
became  the  sovereign  over  the  territory  traversed  by  the  Gila, 
and  over  that  on  both  sides  of  the  Rio  Grande  as  far  south  as 
latitude  31°  47'  30",  below  which  point  the  river  remained  the 
international  boundary.  That  treaty  provided  that  the  previous 
arrangement  as  to  the  Rio  Grande  should  remain  in  force  only 
below  latitude  31°  47'  30".  The  previous  provisions  as  to  the  Gila 
were  abrogated.^ 

(vi) 
§  165.    Conclusions. 

From  the  practice  of  the  United  States  as  indicated  by  the  fore- 
going treaties  with  respect  to  rivers  in  part  traversing  or  bound- 
ing its  own  territory,  the  following  conclusions  are  to  be  drawn  : 

First,  no  right  of  navigation  is  known  to  have  been  exercised  in 
foreign  territory  or  permitted  in  American  territory  except  by  vir- 
tue of  a  treaty. 

Second,  no  treaty  has  declared  it  to  be  a  principle  of  interna- 
tional law  that  international  navigable  rivers  are  generally  open 
to  navigation  by  vessels  of  foreign  riparian  or  non-riparian  States.^ 

Thirdly,  notwithstanding  the  principles  advocated  by  its  states- 
men, the  United  States,  as  the  upstream  sovereign,  on  at  least  one 
occasion  accepted  a  treaty  the  terms  of  which  afford  some  basis 
for  the  contention  that  the  right  of  navigation  secured  thereby 
was  conferred  as  a  grant  by  the  sovereign  downstream ;  and  on 
another  occasion  substantial  concessions  were  yielded  for  the 
privilege  of  access  to  the  sea. 

Fourthly,  in  two  cases  where  the  upper  stream  was  wholly 
within  the  territory  of  a  single  State,  no  permission  was  accorded 

1  Art.  VII,  where  the  following  provision  was  added:  "Nor  shall  any  tax 
or  contribution,  under  any  denomination  or  title,  be  levied  upon  vessels  or 
persons  navigating  the  same,  or  upon  merchandise  or  effects  transported 
thereon,  except  in  the  case  of  landing  upon  one  of  their  shores.  If,  for  the 
purpose  of  making  the  said  rivers  navigable,  or  for  maintaining  them  in  such 
state,  it  should  be  necessary  or  advantageous  to  establish  any  tax  or  contribu- 
tion, this  shall  not  be  done  without  the  consent  of  both  Governments. 

"The  stipulation^  contained  in  the  present  Article  shall  not  impair  the 
territorial  rights  of  either  Republic  within  its  established  limits." 

-  Art.  IV,  id.,  1123.  It  will  be  noted  that  the  point  below  which  provision 
was  made  for  navigation  was  thirty  seconds  north  of  the  point  where  the 
river  constituted  the  international  boundary.  See,  also.  Art.  Ill  of  boundary 
convention  of  Nov.  12,  1884,  id.,  1160;  Art.  V  of  boundary  convention  of 
March  1,  1889,  id.,  1168. 

3  Corn-pare  Art.  XXVI,  treaty  between  the  United  States  and  Bolivia  of 
May  13,  1858,  with  respect  to  the  rivers  Amazon  and  La  Plata,  Malloy's 
Treaties,  I,  122. 

290 


IN  GENERAL  [§  166 

the  inhabitants  of  the  territory  downstream  to  navigate  the  upper 
waters. 

Fifthly,  in  a  treaty  of  the  twentieth  century  concerning  the 
Canadian  boundary  waters,  the  broad  rights  of  navigation  recip- 
rocally agreed  upon  for  the  benefit  of  the  riparian  States  were 
subjected  to  the  operation  of  local  regulations  of  either  country 
not  at  variance  with  the  compact, 

(c) 
International  Streams  of  South  America 

(i) 
§  166.   In  General. 

South  America  is  traversed  by  rivers  which,  together  with  their 
confluents,  afford  navigable  channels  of  communication  with  the 
sea  to  States  remote  therefrom,  and  so  aflord  an  indispensable 
means  of  access  to  the  outside  world. ^  To  oversea  as  well  as  to 
interior  riparian  States,  the  importance  of  freedom  of  navigation 
has  been  apparent.  The  United  States  has  frequently  urged  the 
opening  of  such  streams  to  foreign  maritime  commerce,  and  has 
entered  into  treaties  so  providing.^  In  one  of  them  freedom  of 
navigation  is  declared  to  be  a  principle  of  international  law.^ 
Certain  others  imply  that  the  privilege  is  a  grant  by  a  riparian 
sovereign.^ 

1  Pierre  Orban,  JEtitde  de  Droit  Fluvial  International,  163-164. 

2  Mr.  Marcy,  Sec^^  of  State,  in  a  communication  to  Mr.  Trousdale,  Min- 
ister to  Brazil,  Aug.  8,  1853,  declared:  "You  are  instructed  to  claim  for  our 
citizens  the  use  of  this  natural  avenue  of  trade.  This  right  is  not  derived 
from  treaty  stipulations  —  it  is  a  natural  one  —  as  much  so  as  that  to  navigate 
the  ocean  —  the  common  highway  of  nations.  By  long  usage  it  is  subject 
to  some  restrictions  imposed  by  nations  through  whose  territories  these  navi- 
gable rivers  pass.  This  right,  however,  to  restrict  or  regulate  commerce, 
carried  to  its  utmost  extent,  does  not  give  the  power  to  exclude  such  rivers 
from  the  common  use  of  nations."  MS.  Inst,  to  Brazil,  XV,  215,  Moore, 
Dig.,  I,  642,  643. 

3  Thus  in  Art.  XXVI  of  the  treaty  with  Bolivia  of  May  13,  1858,  it  is  de- 
clared that  "  In  accordance  with  fixed  principles  of  international  law,  Bolivia 
regards  the  rivers  Amazon  and  La  Plata,  with  their  tributaries,  as  highways 
or  channels  opened  bv  nature  for  the  commerce  of  all  nations."  Malloy's 
Treaties,  I,  122. 

*  Art.  I  of  the  treaty  with  the  Argentine  Confederation  of  July  10,  1853, 
declared  that  "The  Argentine  Confederation,  in  the  exercise  of  her  sovereign 
rights,  concedes  the  free  navigation  of  the  rivers  Parana  and  Uruguay,  wherever 
they  may  belong  to  her,  to  the  merchant  vessels  of  all  nations,  subject  only 
to  the  conditions  which  this  treaty  establishes,  and  to  the  regulations  sanctioned 
or  which  mav  hereafter  be  sanctioned,  by  the  national  authority  of  the  Con- 
federation." '  Mallov's  Treaties,  I,  18.  See,  also,  Art.  II  of  treaty  with 
Paraguay  of  Feb.  4,  1859,  icL,  II,  1365.  Ismael  L6pez,  Regimen  I nternacional 
de  los  R'los  Navegables,  53-54. 

291 


§  167]     GENERAL   RIGHTS   OF    PROPERTY   AND    CONTROL 

(ii) 
§  167.   The  Amazon.     The  Orinoco.     The  Rio  de  la  Plata. 

Brazil,  across  the  domain  of  which  the  streams  of  the  Amazon 
and  its  affluents  flow  to  the  sea,  announced  by  a  decree  of  Decem- 
ber 7,  1866,  that  that  river  would  be  "opened  to  vessels  of  all 
nations"  from  September  7,  1867,  as  far  as  the  frontiers  of  that 
State. ^  This  action  contrasted  sharply  with  the  narrower  position 
taken  by  the  Brazilian  Government  in  previous  years.^ 

It  should  be  observed,  however,  that  the  Brazilian  Government 
appears  to  take  the  stand  that  rights  of  foreign  (and  even  ripa- 
rian) States  to  privileges  of  navigation  in  streams  traversing  its 
territory  rest  upon  concessions  from  itself  as  set  forth  in  treaties 
or  declarations.^ 

By  a  law  of  May  14,  1869,  and  a  decree  of  July  1  of  the  same 
year,  Venezuela  opened  the  Orinoco  and  its  branches  to  foreign 
merchant  vessels.'*     Venezuela  appears,  however,  in  discussions 

1  British  and  For.  State  Pap.,  LVIII,  551,  552-567.  See,  also,  decree  of 
Jan.  25,  1873,  id.,  LXV,  607;    Moore,  Dig.,  I,  645. 

Cf.,  also,  J.  C.  Carlomagno,  El  Derecho  Fluvial  Internacional,  129-144; 
Ismael  L6pez,  Regimen  I nternacional  de  los  R'los  Navegables,  57-62 ;  Pierre 
Orban,  Stude  de  Droit  Fluvial  International,  170-173. 

With  respect  to  the  permission  granted  by  Brazil  at  various  times  to  Ameri- 
can vessels  of  war  to  ascend  the  upper  Amazon,  see  For.  Rel.  1899,  115-124, 
Moore,  Dig.,  I,  648-649. 

Cf.  Art.  IV  of  treaty  of  boundaries  and  navigation  between  Brazil  and 
Colombia  of  April  24,  1907,  For.  Rel.  1907,  I,  110;  modus  vivendi  between 
same  States  of  same  date  relative  to  navigation  and  commerce  on  the  I^a  or 
Putumayo,  id.,  110;  statement  of  Baron  do  Rio-Branco,  Brazilian  Minister 
of  Foreign  Relations,  to  the  President  of  Brazil,  Sept.  30,  1907,  respecting 
the  modus  vivendi  with  Colombia,  id.,  113. 

Concerning  the  effect  of  the  Constitution  of  Brazil  on  the  right  of  that  State 
to' impose  transit  taxes,  see  opinion  of  Mr.  L.  Renault,  For.  Rel.  1903,  38-39. 

^  Concerning  the  efforts  of  the  United  States  to  secure  freedom  of  naviga- 
tion in  the  Amazon  between  1850  and  1860,  and  the  stand  taken  by  Brazil, 
see  Moore,  Dig.,  I,  640-645,  and  documents  there  cited,  especially  communi- 
cation of  Mr.  Marcv,  Secretary  of  State,  to  Mr.  Trousdale,  American  Minister 
to  Brazil,  Aug.  8,  1853,  MS.  Inst.  Brazil,  XV,  215;  also  Schujder,  American 
Diplomacy,  329-344. 

'  This  was  shown  by  the  attitude  of  Brazil  in  its  controversy  with  Bolivia 
respecting  the  Acre  question.  See  Baron  do  Rio-Branco,  Minister  for  Foreign 
Affairs,  to  Mr.  Seeger,  American  Consul-General,  Feb.  20,  1903,  For.  Rel.  1903, 
42,  43,  Moore,  Dig.,  I,  646.  Cf.  Art.  V  of  treaty  between  Brazil  and  Peru, 
Sept.  8,  1909,  concerning  the  navigation  of  the  Amazon  basin,  Brit,  and  For. 
State  Pap.,  CII,  199,  201;  also  treaty  of  commerce  and  fluvial  navigation 
between  Bolivia  and  Brazil,  of  Aug.  12,"  1910,  Nouv.^  Rec.  Gen.,  3  ser.,  VII,  632. 

*  Moore,  Arbitrations,  II,  1696-1698.  Concerning  the  concession  in  1873, 
of  an  exclusive  right  of  navigation  to  Gen.  Perez,  cf.  id.,  1701.  See,  also, 
decree  of  July  1,  1893,  closing  all  of  the  channels  of  the  Orinoco  to  foreign 
commerce  except  the  Boca  Grande,  reserving  the  Macareo  and  Pedernales 
channels  for  the  coasting  trade,  and  absolutely  prohibiting  the  navigation  of 
its  other  channels.  For.  Rel.  1893,  730;  also  decree  of  June  6,  1894,  For.  Rel. 
1894,  794;  decision  of  the  High  Federal  Court  sustaining  validity  of  decree 
of  July  1,  1893,  id.,  798.     Cf.,  also,  in  this  connection,  Moore,  Dig.,'l,  649-650. 

292 


EUROPEAN  RIVERS  [§  168 

and  negotiations  with  Colombia,  the  riverain  proprietor  of  the 
upper  waters,  to  have  contested  its  claim  to  a  right,  founded  on  the 
law  of  nations,  of  access  to  the  sea.  The  former  has  asserted 
that  any  privilege  of  navigation  through  the  waters  traversing 
Venezuelan  territory  is  in  the  nature  of  a  grant  from  the  sovereign 
thereof.^ 

Pursuant  to  numerous  treaties,  the  Rio  de  la  Plata  and  its 
affluents,  the  Parana  and  the  Uruguay,  have  been  opened  to  the 
navigation  of  non-riparian  as  well  as  riparian  States.^  To  certain 
of  these  agreements  the  United  States  is,  as  has  been  observed,  a 
party.  Notwithstanding  the  jurisdictional  claims  of  the  Argen- 
tine Republic,  and  the  prevailing  theory  on  which  rights  of  navi- 
gation are  yielded,  there  has  resulted  a  regime  which,  according 
to  Pierre  Orban,  "  has  been  little  by  little  unified  on  a  very  broad 
basis."  ' 

(d) 
International  Streams  of  Europe 

(i) 

§  168.   Relation  of  the  United  States  to  Navigation  Gen- 
erally. 

The  navigation  of  European  rivers,  while  of  much  concern  to 
riparian  States  and  others  of  the  same  continent,  was,  during  the 
nineteenth  century,  of  less  moment  to  oversea  Powers. 

The  United  States  doubtless  felt  the  influence  of  the  tendency 
towards  freedom  of  navigation  expressed  by  and  resulting  from 
the  Peace  of  Paris  of  1814,  and  the  Treaty  of  Vienna  of  1815. 
Its  chief  concern  was,  however,  in  the  effect  of  such  conventions 
upon  practices  which  did  or  should  prevail  in  relation  to  American 
streams. 

1  J.  C.  Carlomagno,  El  Derecho  Fluvial  Internacional,  118,  126-128;  Ismael 
L6pez,  Regimen  Internacional  de  los  Rios  Navegables,  96-100.  See,  also,  report 
of  Colombian  Minister  of  Foreign  Affairs,  For.  Rel.  1894,  193,  200,  Moore, 
Dig.,  I,  151.  See  reasoning  of  the  umpire  in  the  Faber  ca.se,  sustaining  certain 
Venezuelan  decrees  suspending  traffic  on  the  river  Zulia  during  1900,  1901, 
and  1902,  Ralston's  Report  (Venezuelan  Arbitrations,  1903),  600,  620;  also 
bibliographical  note  of  the  reporters,  id.,  603. 

^  Bonfils-Fauchille,  7  ed.,  §  529,  and  conventions  there  cited;  also  J.  C. 
Carlomagno,  El  Derecho  Fluvial  Internacional,  Chap.  VI ;  Ismael  L6pez, 
Regimen  Internacional  de  los  Rios  Navegables,  53-56. 

^  iltude  de  Droit  Fhivial  International,  162,  170.  See  "The  Jurisdiction  of 
the  Rio  dela  Plata",  Am.  J.,  IV,  430;  also  Supp.,  id.,  138,  with  text  of  protocol 
between  Uruguay  and  Argentina  of  Jan.  6,  1910. 

293 


§  168]     GENERAL   RIGHTS   OP^   PROPERTY   AND   CONTROL 

In  the  elaborate  arrangement  for  the  navigation  of  international 
rivers  established  by  the  German  and  Austrian  peace  treaties 
of  1919,  the  United  States,  whether  or  not  a  party  thereto,  has 
a  substantial  commercial  interest  with  respect  to  provisions 
designed  to  facilitate  the  transit  of  goods,  as  well  as  to  those 
pertainmg  to  the  treatment  of  vessels. 

(ii) 
The  Treatment  of  Certain  Rivers  in  the  Nineteenth  Century 

§  169.     The  Rhine. 

The  treaty  of  peace  of  Paris  of  INIay  30,  1814,  announced  in 
Article  V  that  the  navigable  portions  of  the  Rhine,  to  and  from 
the  sea,  should  be  free,  and  in  such  a  way  that  their  use  should 
be  forbidden  to  no  one.  To  the  future  Congress  (of  Vienna)  was 
left  the  burden  of  fixing  the  principles  by  which  should  be  regulated 
the  duties  to  be  raised  by  the  riparian  States,  in  a  manner  equal 
and  most  favorable  for  the  commerce  of  all  nations.  That  Con- 
gress, in  order  to  facilitate  communications  between  peoples,  and 
to  render  them  constantly  less  strangers  to  each  other,  was  also 
to  examine  and  decide  in  what  manner  the  foregoing  provisions 
could  be  extended  to  all  other  rivers  which  in  their  navigable 
courses  separated  different  States.^ 

The  rules  of  the  Congress  of  Vienna  were  so  expressed  as  to  give 
room  for  a  narrow  construction  of  the  principles  laid  down  in  the 

1  Brit,  and  For.  State  Pap.,  XIX.  86. 

"By  the  Treaty  of  Vienna  of  June  9,  1815,  the  powers  whose  States  were 
'  separated  or  traversed  by  the  same  navigable  river '  engaged  '  to  regulate,  by 
common  consent,  all  that  regards  its  navigation  ',  and  for  this  purpose  to  name 
commissioners  who  should  adopt  as  the  bases  of  their  proceedings  certain  prin- 
ciples, the  chief  of  which  was  that  the  navigation  of  such  rivers,  '  along  their 
whole  course,  .  .  .  from  the  point  where  each  of  them  becomes  navigable  to 
its  mouth  shall  be  entirely  free,  and  shall  not,  in  respect  to  commerce,  be  pro- 
hibited to  any  one',  subject  to  regulations  of  police.  In  order  to  assure  the 
application  of  this  principle,  Articles  were  inserted  expressly  regulating  in  cer- 
tain respects  the  free  navigation  of  the  Rhine ;  and  it  was  provided  that  '  the 
same  freedom  of  navigation '  should  '  be  extended  to  the  Necker,  the  Mayne, 
the  Moselle,  the  Meuse,  and  the  Scheldt,  from  the  point  where  each  of  them 
becomes  navigable  to  their  mouths.'  And  in  order  to  '  establish  a  perfect 
control '  over  the  regulation  of  the  navigation,  and  to  '  constitute  an  authority 
which  may  serve  as  a  means  of  communication  between  the  States  of  the  Rhine 
upon  all  subjects  relating  to  navigation ',  it  was  stipulated  that  a  central  com- 
mission should  be  appointed,  consisting  of  delegates  named  by  the  various 
bordering  States,  which  commission  should  regularly  assemble  at  Mayence  on 
the  1st  of  November  in  each  year."  Moore,  Dig.,  I,  628.  Arts.  CVIII-CXVI 
of  the  so-called  Act  of  the  Congress  of  Vienna  of  June  9,  1815,  contain  the 
provisions  for  the  navigation  of  international  rivers.  For  the  text  thereof 
see  Brit,  and  For.  State  Pap.,  II,  7,  52-53.  Annex  XVI  contains  the  Rules 
of  Navigation.  Id.,  162.  Attached  to  the  rules  were  a  series  of  Articles 
concerning  the  navigation  of  the  Rhine.     Id.,  163-178. 

294 


THE   DANUBE  [§  170 

Treaty  of  Paris  of  May  30, 1814.^  In  consequence,  those  rules  were 
oftentimes  so  interpreted  and  applied  in  later  conventions  between 
the  riparian  States  as  to  indicate  that  rights  of  navigation  in  the 
Rhine  were  the  sole  possession  of  States  whose  territories  were 
traversed  or  separated  by  its  streams,  and  that  the  riparian  pro- 
prietors could  themselves  lawfully  fix  the  terras  of  navigation 
therein. 2  This  was  illustrated  by  regulations  adopted  by  the 
riparian  States  in  the  convention  of  Mayence,  March  31,  1831,^ 
and  by  those  (which  replaced  them)  of  the  convention  of  Mann- 
heim, October  17,  1868.'' 

§  170.   The  Danube. 

The  principles  of  the  Act  of  the  Congress  of  Vienna  designed  to 
regulate  the  navigation  of  international  rivers  were  applied  to  the 
Danube  and  its  mouths  by  Article  XV  of  the  Treaty  of  Paris  of 
]March  30,  1856.  It  was  declared  that  the  navigation  of  that 
river  should  not  be  subjected  to  any  impediment  or  charge  not 
expressly  provided  for  by  the  accompanying  stipulations,  and  that 
consequently,  there  should  not  be  levied  any  toll  founded  solely 
upon  the  fact  of  the  navigation  of  the  river,  or  any  duty  upon  goods 
which  might  be  on  board  of  a  vessel.     With  the  exception  of 

^  E.  Engelhardt,  Du  Regime  Conventionnel  des  Fleuves  Iniernationaux,  32-41, 
73-93,  in  which  attention  is  called  to  the  work  of  Baron  Humboldt  in  securing 
acceptance  of  the  ambiguous  provision  that  the  navigation  of  the  Rhine  should 
not  be  prohibited  to  anyone  "with  respect  to  commerce"  (sous  le  rapport  du 
commerce).  See,  also,  Pierre  Orban,  tltude  de  Droit  Fluvial  International,  97- 
129. 

^  Engelhardt  (in  Du  Regime  Conventionnel  des  Fleuves  Internationaux,  p.  81) 
adverts  to  the  opinion  expressed  by  the  Prussian  Government  in  a  despatch 
addressed  in  1857  to  its  delegates  on  the  European  Danube  Commission  in 
the  following  terms  :  "According  to  the  negotiations  of  the  Congress  at  Vienna 
respecting  Art.  109,  it  is  not  to  be  doubted  that  it  was  not  within  the  design 
of  that  act  to  accord  to  non-riparians  a  right  of  navigation  on  the  rivers  dealt 
with  conventionally."  Citing  despatch  of  Baron  de  Manteuffel  of  Aug.  26, 
1857.  That  author  adds  that  practice  served  to  confirm  this  interpretation 
with  respect  to  the  rivers  traversing  Prussian  territory  —  that  is,  the  Elbe, 
the  Weser,  the  Ems,  and  the  Rhine,  as  well  as  to  Austro-Russian  streams,  such 
as  the  Vistula,  the  Dnieper  and  the  Pruth.  He  calls  attention  also  to  the 
formality  and  rigor  of  Rhenish  legislation  of  1831.  He  cites  Art.  IV  of  the 
convention  of  June  23,  1821,  respecting  the  navigation  of  the  Elbe  (Brit,  and 
For.  State  Pap.,  VIH,  954) ;  Arts.  Ill  and  XLII  of  the  convention  concluded 
at  Mayence  Mar.  31,  1831,  relative  to  the  navigation  of  the  Rhine  {id.,  XVIII, 
1078  and  1092) ;  Art.  VI  of  the  Act  concerning  the  Ems  of  1843 ;  Art.  I  of 
the  Act  concerning  the  Weser  of  1823;  as  well  as  the  convention  between 
Austria  and  Russia  of  Aug.  5-17,  1818.     (Brit,  and  For.  State  Pap.,  V,  938.) 

See,  also,  G.  Kaeckenbeeck,  International  Rivers,  62-66. 

'  Brit,  and  For.  State  Pap.,  XLVIII,  1076. 

*  Brit,  and  For.  State  Pap.,  LIX,  470.  See,  also,  in  this  connection,  British 
memorandum  opposing  demands  of  the  United  States  in  1824,  respecting  the 
navigation  of  the  St.  Lawrence,  Am.  State  Pap.,  For.  Rel.,  VI,  772,  774. 

295 


§  170]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

regulations  of  police  and  quarantine,  no  obstacle  whatever  was 
to  be  opposed  to  free  navigation.^ 

With  a  view  to  carrying  out  the  foregoing  arrangement  it  was 
provided  in  Article  XVI  that  a  commission,  in  which  Great  Britain, 
Austria,  France,  Prussia,  Russia,  Sardinia  and  Turkey  were  each 
to  be  represented  by  one  delegate,  should  be  charged  to  designate 
and  to  cause  to  be  executed  certain  necessary  works  to  clear  the 
mouths  of  the  Danube  as  well  as  neighboring  parts  of  the  sea  from 
obstructing  impediments,  for  the  benefit  of  navigation.^ 

By  Article  XVII  provision  was  made  for  the  establishment  of  a 
permanent  commission  (described  in  Article  XVIII  as  the  "River 
Commission")  to  be  composed  of  delegates  of  Austria,  Bavaria,  the 
Sublime  Porte  and  Wurtemberg  (one  for  each  of  those  powers), 
to  whom  should  be  added  commissioners  from  the  three  Danubian 
Principalities  whose  nomination  should  have  been  approved  by  the 
Porte.  This  commission  was  to  prepare  regulations  of  navigation 
and  river  police,  to  remove  impediments  of  whatever  nature  which 
might  serve  to  prevent  the  application  to  the  Danube  of  the  ar- 
rangements of  the  treaty  of  Vienna,  to  order  and  cause  to  be  exe- 
cuted the  necessary  works  throughout  the  whole  course  of  the 
river,  and,  after  the  dissolution  of  the  European  Commission,  to 
see  to  the  maintaining  of  the  mouths  of  the  Danube  and  the  neigh- 
boring parts  of  the  sea  in  a  navigable  state.^ 

The  Treaty  of  Berlin  of  July  13,  1878,  made  numerous  further 
provisions.  In  order  to  increase  the  guaranties  assuring  freedom 
of  navigation  on  the  Danube  and  "recognized  as  of  European 
interest ",  Article  LII  declared  that  all  existing  fortresses  and  for- 
tifications on  the  course  of  the  river  from  the  Iron  Gates  to  its 

1  Brit,  and  For.  State  Pap.,  XLVI,  8,  12,  Moore,  Dig.,  I,  630. 

According  to  Art.  XV  it  was  declared  that  the  arrangement  appHed  to  the 
Danube  thenceforth  formed  a  part  of  the  pubUc  law  of  Europe  and  that  the 
contracting  parties  took  it  under  their  guaranty. 

^  The  commission  referred  to  in  the  text  was  known  as  the  European  Danube 
Commission  as  distinct  from  the  so-called  River  Commission  for  which  pro- 
vision was  made  in  Art.  XVIL     See  statement  in  Moore,  Dig.,  1,  6.30-631. 

"By  the  Treaty  of  London  of  Mar.  13,  1871,  the  e.xistence  of  the  European 
Commission  was  extended  to  AprU  24,  1883.  It  was  further  provided  that 
'the  conditions  of  the  reassembling  of  the  riverain  commission',  established 
by  Art.  XVII  of  the  Treaty  of  Paris,  should  '  be  fixed  by  previous  understanding 
between  the  riverain  powers,  without  prejudice  to  the  clause  relative  to  the 
three  Danubian  principalities',  and  that,  so  far  as  any  modification  of  the 
Article  should  be  involved,  it  should  'form  the  subject  of  a  special  convention 
between  the  consignatory  powers.'"  Moore,  Dig.,  I,  630.  For  the  text  of 
the  treaty,  see  Brit,  and  For.  State  Pap.,  LXI,  7. 

'  Brit,  and  For.  State  Pap.,  XLVI,  14.  According  to  Art.  XIX  it  was  agreed 
that  the  contracting  parties  should  have  the  right  to  station  at  all  times  two 
light  vessels  at  the  mouths  of  the  Danube.     Id.,  14. 

296 


THE  DANUBE  [§  170 

mouths  should  be  razed,  and  no  new  ones  erected  ;  and  that  below 
that  point,  no  vessel  of  war,  with  the  exception  of  ships  of  light 
tonnage  in  the  service  of  the  river  police  and  customs,  should 
navigate  the  stream.^  Other  articles  maintained  the  European 
Commission  and  extended  its  functions.^ 

"The  historical  development  of  the  Danube  question  resulted," 
as  an  authoritative  American  commentator  has  pointed  out, 
"in  a  division  of  the  river  among  a  large  number  of  regimes,"  and 
which  "  secured  the  actual  freedom  of  navigation  only  on  the  lower 
river."  ^     That  division  was  doubtless  partly  due  to  the  differing 

1  Brit,  and  For.  State  Pap.,  LXIX,  749,  765,  Moore,  Dig.,  1, 630.  It  was  also 
provided  that  the  so-called  "stationnaires"  of  the  powers  at  the  mouths  of  the 
Danube  might  ascend  the  river  as  far  as  Galatz.  CJ.  Pierre  Orban,  Stude  de 
Droit  Fluvial  International,  226-235. 

^  According  to  Art.  LIII  the  European  Commission  of  the  Danube,  on  which 
Roumania  was  to  be  represented,  was  maintained  in  its  functions  and  was  to 
exercise  them  thereafter  as  far  as  Galatz  in  complete  independence  of  the 
territorial  authorities.  Moreover,  all  treaties,  arrangements,  acts,  and  de- 
cisions relating  to  its  rights,  privileges,  prerogatives,  and  obligations  were 
confirmed.  By  Art.  LIV  it  was  provided  that  one  year  before  the  expiration 
of  the  term  assigned  for  the  duration  of  the  European  Commission  (April  24, 
1883)  the  Powers  should  come  to  an  understanding  as  to  the  prolongation  of 
its  powers,  or  the  modifications  which  they  might  deem  necessary  to  introduce. 
Art.  LV  declared  that  the  regulations  respecting  navigation,  river  police  and 
supervision  from  the  Iron  Gates  to  Galatz,  should  be  drawn  up  by  the  European 
Commission,  assisted  by  delegates  of  the  riverain  States,  and  placed  in  harmony 
with  those  which  had  been  or  might  be  issued  for  the  portion  of  the  river  below 
Galatz. 

"In  order  to  come  to  an  understanding  in  regard  to  these  last  stipulations, 
a  new  treaty  was  concluded  March  10, 1883,  between  Austria-Hungary,  France, 
Germany,  Great  Britain,  Italy,  Russia,  and  Turkey.  By  this  treaty  the 
jurisdiction  of  the  European  Commission  was  extended  from  Galatz  to  Ibraila, 
and  its  powers  were  prolonged  till  April  24,  1904,  and  thereafter  for  successive 
terms  of  three  years  till  a  certain  notice  was  given. 

"But,  besides  prolonging  the  existence  of  the  European  Commission,  the 
treaty  also  created  a  new  commission,  called  the  'Mixed  Commission  of  the 
Danube',  to  consist  of  delegates  of  Austria-Hungary,  Bulgaria,  Roumania, 
and  Servia,  and  a  member  of  the  European  Commission,  for  the  purpose  of 
superintending  the  execution  of  the  regulations  made  for  the  navigation  of 
the  river.  This  commission  is  to  endure  as  long  as  the  European  Commission, 
to  hold  two  .sessions  a  vear  and  to  make  its  decisions  'bv  a  majoritv  of  votes.' " 
Moore,  Dig.,  I,  631.  "'For  the  text  of  the  treaty  of  March  10,  1883,  see  Brit, 
and  For.  State  Pap.,  LXXIV,  20. 

See  Regulations  for  Navigation  and  Police  applicable  to  the  Danube  between 
Galatz  and  the  mouths,  Nov.  10,  1911,  Hertslet's  Commercial  Treaties,  XXVI, 
862. 

See  Gustave  Demorgny,  La  Question  du  Danube,  Paris,  1911,  295-313; 
Bonfils-Fauchille,  7  ed.,  §  528,  with  bibliography ;  A.  G.  Pitisteano,  La  Question 
dti  Danube,  Paris,  1914. 

Cf.  G.  Kaeckenbeeck,  International  Rivers,  83-137,  and  documents  there 
given. 

'  Joseph  P.  Chamberlain,  The  Danube,  Dept.  of  State,  confidential  docu- 
ment, 1918,  102.  That  writer  in  his  valuable  monograph  notes  the  treatment 
which  was  applied  to  eight  different  sections  of  the  river  :  (1)  "from  the  point 
where  the  river  becomes  navigable  in  German  territory  to  Passau  on  the 
Austrian  border";  (2)  "from  Passau  to  the  point  where  the  river  becomes 
a  boundary  between  Serbia  and  Austria  " ;  (3)  "between  the  point  where  it  is 

297 


§  170]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

relationships  which  various  sections  of  the  river  bore  to  the  riparian 
States  whose  territories  were  bounded  or  intersected  by  it,  and  to 
the  differing  degrees  of  interest  felt  by  maritime  States,  whether 
riparian  or  non-riparian,  in  the  navigation  of  particular  sections.^ 
No  single  method  of  administration  was  acknowledged  to  be  ap- 
plicable even  to  such  parts  of  the  river  as  were  open  to  ships  of 
every  flag. 

§  171.   The  Scheldt.     The  Po. 

According  to  the  Treaty  of  Vienna  of  June  9, 1815,  such  freedom 
of  navigation  as  had  been  fixed  for  the  Rhine  was  extended  also  to 
the  Scheldt  and  the  Meuse,  as  has  been  observed,  from  the  point 
where  each  of  those  rivers  was  navigable  to  its  mouth. ^  Article 
IX  of  the  annex  to  the  treaty  of  London  of  April  19,  1839,  be- 
tween Great  Britain,  Austria,  France,  Prussia  and  Russia  on  the 
one  part,  and  the  Netherlands  on  the  other,  declared  that  the  pro- 
visions of  the  General  Act  of  the  Congress  of  Vienna,  relative  to 
the  free  navigation  of  navigable  streams,  should  be  applied  to  those 
rivers  which  separated  Belgian  and  Dutch  territories  or  which 
traversed  them  both.  Elaborate  provision  was  made  for  the  navi- 
gation of  the  Scheldt,  and  permission  accorded  the  Government 
of  the  Netherlands  to  levy  a  specified  tonnage  duty  on  vessels 
"coming  from  the  high  sea"  which  should  ascend  the  western 
Scheldt  in  order  to  proceed  to  Belgium,  and  also  such  a  duty  (of  less 
amount)  on  vessels  which,  coming  from  Belgium,  should  descend 
that  stream  in  order  to  proceed  to  the  high  sea.^  On  May  12,  1863, 
Belgium  and  the  Netherlands  concluded  a  treaty  for  the  redemp- 

the  boundary  between  Serbia  and  Austria  to  Moldowa  at  the  head  of  the 
Cataracts";  (4)  "the  Iron  Gates  Cataracts  section";  (5)  "from  the  Iron 
Gates  to  Braila";  (6)  "Braila  to  SouUna,  including  the  St.  Georges  arm''; 
(7)  "that  part  of  the  Kilia  arm  which  forms  the  boundary  between  Russia 
and  Roumania";  and  (8)  "the  Kiha  arm  and  Hha  delta,  wholly  under 
Russian  territory." 

1  Thus  the  general  concern  as  to  privileges  between  Braila  and  the  sea, 
and  which  also  differed  from  that  as  to  privileges  between  Braila  and  the  Iron 
Gates,  was  of  wider  scope  and  was  felt  by  more  States  than  that  pertaining 
to  navigation  on  the  upper  river. 

2  Art.  CXVII  of  the  Act  of  the  Congress  of  Vienna,  Brit,  and  For.  State  Pap., 
II,  7,  .54;    Articles  appended  to  Annex  XVI,  id.,  178. 

The  navigation  of  the  Scheldt  had  been  closed  by  Art.  XIV  of  the  Treaty  of 
Miinster  of  Jan.  30,  1648.  See,  in  this  connection,  E.  Engelhardt,  Histoire 
du  Droit  Fluvial  Conventionnel,  40  et  seq. ;  Phillimore,  Int.  Law,  I,  §  CLXIII. 

3  Brit,  and  For.  State  Pap.,  XXVII,  992, 994-996.  It  may  be  observed  that 
on  the  same  day,  Belgium  and  the  Netherlands  concluded  a  treaty  containing 
the  several  Articles  embodied  in  the  Annex  mentioned  in  the  text.  According 
to  Art.  XIV  of  the  Annex:  "The  port  of  Antwerp,  in  conformity  with  the 
stipulations  of  Art.  XV  of  the  treaty  of  Paris,  of  the  30th  of  May,  1814,  shall 
continue  to  be  solely  a  port  of  commerce." 

298 


THE   SCHELDT.     THE  PO  [§  171 

tion  of  the  Scheldt  dues  by  the  capitalization  of  the  same  for  a 
specified  sum,  and  in  which  the  King  of  the  Netherlands  renounced 
forever  the  right  of  collecting  tolls  on  the  navigation  of  the  Scheldt 
pursuant  to  Article  IX  of  the  treaty  of  1839.^  This  agreement 
was  annexed  to  the  general  treaty  of  July  16,  1863,  concluded  in 
behalf  of  seventeen  interested  States  on  the  one  hand,  and  Belgium 
on  the  other,  and  providing  for  an  equitable  division  of  the  bur- 
den assumed  by  the  convention  of  ^l&y  12.^ 

Upon  the  outbreak  of  The  World  War  in  1914,  the  Dutch  Gov- 
ernment undertook  the  establishment  of  "war  buoying"  on  the 
Scheldt,  and  with  the  design  of  maintaining  navigation  therein.^ 
In  its  neutrality  declaration  communicated  August  6,  1914,  vessels 
of  war  or  vessels  assimilated  thereto  and  belonging  to  a  belligerent, 
were  forbidden  passage  across  the  territory  within  Dutch  terri- 
torial waters,  and  which  obviously  embraced  the  lower  Scheldt 
and  its  mouths."*  It  must  be  apparent  that,  as  Sir  Walter  Philli- 
more  observed  in  1917,  any  arrangement  which  prevents  mili- 
tary or  naval  expeditions  from  passing  between  Antwerp  and  the 
sea  is  a  serious  detriment  to  the  welfare  of  Belgium,  and  a  reason 
for  an  adjustment  giving  to  that  State  "equal  rights  with  Holland 
over  the  west  Scheldt  both  in  war  and  peace."  ^ 

1  Brit,  and  For.  State  Pap.,  LIII,  15;    Malloy's  Treaties,  I,  77. 

'  Brit,  and  For.  State  Pap.,  LIII,  8.  See,  also,  Pierre  Orban,  6tude  de  Droit 
Fluvial  International)  138-143;  Auguste  Parent,  Du  Commerce  de  Belgique  d 
propos  de  V Affranchissement  de  I'Escaut,  Brussels,  1863;  G.  Kaeckenbeeck, 
International  Rivers,  31-32,  71-83. 

The  United  States,  by  a  treaty  concluded  with  Belgium  July  20,  1863, 
secured  the  advantages  of  the  extinguishment  of  the  Scheldt  dues  through 
an  undertaking  to  assume  an  equitable  portion  of  the  capitalization  thereof 
as  provided  by  a  convention  between  the  same  States  of  May  20,  1863.  Mal- 
loy's Treaties,  I,  75  and  73,  respectively.  Annexed  to  the  treaty  of  July  20, 
1863,  was  a  declaration  by  the  Netherlands  Minister  at  Brussels  of  July  15, 
1863,  in  virtue  of  special  powers  delivered  to  him,  that  the  extinguishment  of 
the  Scheldt  dues,  consented  to  by  his  sovereign  on  May  12,  applied  to  all  flags, 
that  those  dues  could  never  be  reestablished  in  any  form  whatsoever,  and  that 
their  extingui.shment  should  not  affect  in  any  way  the  other  provisions  of  the 
treaty  of  April  19,  1839.  Id.,  79.  See,  also,  Dana's  Wheaton,  Dana's  Note 
No.  il6. 

3  Belgian  Gray  Book,  Misc.  No.  12  [1914],  Cd.  7627,  documents  29,  54,  55, 
and  56.  According  to  document  No.  49,  the  British  Government  announced 
Aug.  5,  1914,  that  "the  British  fleet  will  insure  the  free  passage  of  the  Scheldt 
for  the  provisioning  of  Antwerp." 

"During  the  siege  of  Antwerp  in  October,  1914,  no  attempt  was  made  by 
the  Allies  to  use  the  estuary  of  the  Scheldt  for  warlike  purpo.ses,  but  the  position 
of  these  waters  in  international  law  has  never  yet  been  preciseh'  acknowledged 
or  defined."  Oakes  and  Mowat,  The  Great  European  Treaties  of  the  Nine- 
teenth Century,  Oxford,  1918,  p.  135. 

^  Misc.  No.  12  [1914],  Cd.  7627,  document  No.  53,  Am.  J.,  IX,  Supp.,  80. 

*  Sir  Walter  G.  F.  Phillimore,  bart.,  Three  Centuries  of  Treaties  of  Peace, 
London,  1917,  147  and  52.  That  distinguished  jurist  has  since  been  made  a 
baron. 

299 


§  171]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

The  relation  of  Antwerp  both  to  Belgium  and  to  oversea  mari- 
time States  would  appear  to  create  a  general  interest  in  removing 
the  barrier  due  to  the  circumstance  that  the  estuaries  of  the  Scheldt 
pass  through  territory  foreign  to  Belgium,  and  possibly  by  assist- 
ing that  State  to  become,  on  equitable  terms,  the  territorial  sov- 
ereign ^ver  a  necessary  channel  between  Antwerp  and  the  sea. 

The  general  principles  adopted  by  the  Congress  of  Vienna  for 
the  navigation  of  rivers  were,  by  Article  XCVI  of  the  General  Act 
of  1815,  made  applicable  to  the  Po.^  By  the  treaty  of  July  3,  1849, 
between  Austria  and  the  Duchies  of  Parma  and  jNIodena,  the  navi- 
gation of  that  river,  including  all  of  its  affluents,  whether  or  not 
international  streams,  was  rendered  free  to  all  flags.^  The  Treaty 
of  Zurich,  concluded  November  10,  1859,  in  behalf  of  France,  Aus- 
tria and  Sardinia,  maintained  the  liberty  of  navigation  within  the 
Po  and  its  aflBuents  "conformably  to  the  treaties."  ^ 

§  172.   The  Vistula. 

The  principle  of  free  navigation  of  international  rivers  was  early 
applied  to  certain  Polish  streams.  Article  VIII  of  the  treaty  of 
Tilsit,  concluded  between  France  and  Russia  July  7,  1807,  declared 
the  navigation  of  the  Vistula  to  be  free.^  On  IVIay  3,  1815,  treaties 
concluded  between  Russia  and  Austria,^  and  Russia  and  Prussia,^ 
provided  that  the  navigation  of  all  rivers  and  canals  throughout 
the  entire  extent  of  the  ancient  Kingdom  of  Poland,  wherever  they 
were  actually  navigable  or  might  become  so,  should  be  free,  in  the 
sense  that  they  should  not  be  closed  to  any  of  the  inhabitants  of 
the  Polish  Provinces  under  the  Governments  of  Russia  or  Austria, 
and  Russia  or  Prussia,  respectively.^  The  principles  of  these  and 
certain  other  provisions  of  both  treaties  were  reaffirmed  by  Article 

1  Brit,  and  For.  State  Pap.,  II.  47. 

2  Id.,  XXXVIII,  130.  The  Pope  acceded  to  this  treaty  by  an  Act  of  Feb. 
12,  1850.  Id.,  136.  See  Pierre  Orban,  tltude  de  Droit  Fluvial  International, 
143-145,  where  that  author  remarks  :  "Let  us  observe  that  the  negotiators  of 
1815  did  not  dare  to  assimilate  to  rivers  their  affluents  which  were  purely 
national.  Those  of  1849  were,  therefore,  shown  to  be  the  more  courageous 
and  also  the  more  logical." 

^  Brit,  and  For.  State  Pap.,  L,  1019.  According  to  a  treaty  between  Portugal 
and  Spain  of  Aug.  31,  1835,  the  river  Douro  was  rendered  free  for  the  naviga- 
tion of  the  subjects  of  the  contracting  parties.  Nouv.  Rec,  XIV,  97 ;  Brit,  and 
For.  State  Pap.,  XXIII,  1046.  See,  also,  Sec.  11  of  Regulations  concluded 
between  Spain  and  Portugal,  Jan.  16, 1877,  Brit,  and  For.  State  Pap.,  LXVIII, 
145,  152. 

See,  also,  J.  VaUotton,  "Du  Rigime  Juridique  des  Cours  d'Eau  Inter- 
nationaux  de  I'Europe  Centrale",  Rev.  Droit  Int.,  2  ser.,  XV,  271,  303-306. 

^  Rec,  VIII,  639. 

6  Brit,  and  For.  State  Pap.,  II,  56,  60.  « Id.,  II,  63,  68. 

^  Pierre  Orban,  Stiide  du  Droit  Fluvial  International,  133-138. 

300 


FREEDOM  OF  INLAND  NAVIGATION  [§  173 

XIV  of  the  General  Act  of  the  Congress  of  Vienna.^  Austria  and 
Russia  by  a  treaty  concluded  at  St.  Petersburg  August  5/17,  1818,^ 
and  Prussia  and  Russia  by  a  treaty  there  concluded  December  19, 
1818,^  gave  precise  applications  to  their  earlier  compacts.  The 
Austro-Russian  convention  declared  in  Article  XI  that  the  navi- 
gation of  the  Vistula  should  be  free  from  e^•ery  duty  or  tax  with 
respect  to  the  borders  which  belonged  to  the  contracting  parties. 
The  Russo-Prussian  convention  provided  in  Article  II  that  the 
navigation  of  the  Vistula  should  be  free  from  every  charge  except 
one  collected  in  Prussia  under  the  denomination  of  "  Schiffsgefass- 
gelder."  This  convention  was  replaced  b}^  a  treaty  concluded  by 
Prussia  and  Russia  February  27  (March  11),  1825,  which  provided 
in  Article  V  that  the  navigation  of  the  Vistula  and  the  Niemen,  as 
well  as  their  affluents,  should  be  free  from  tolls."* 

(iii) 

Certain  Conventional  Arrangements  of  1919 

§  173.   Freedom  of  Inland  Navigation. 

According  to  the  treaty  of  peace  with  Germany  of  June  28, 1919, 
the  nationals  of  any  of  the  Allied  and  Associated  Powers,  as  well 
as  their  vessels  and  property,  were  accorded  the  right  to  enjoy  in 
all  German  ports  and  on  the  inland  navigation  routes  of  Germany 
the  same  treatment  in  all  respects  as  German  nationals,  vessels 
and  property.  It  was  declared  in  particular  that  the  vessels  of 
any  one  of  those  Powers  should  be  entitled  to  transport  goods  of 
any  description,  and  passengers  also,  to  or  from  any  ports  or  places 
in  German  territory  to  which  German  vessels  might  have  access, 
under  conditions  which  should  not  be  more  onerous  than  those 
applied  in  the  case  of  national  vessels.^ 

1  Brit,  and  For.  State  Pap.,  II,  14.  2  Nouv.  Rec,  IV,  540. 

3  Brit,  and  For.  State  Pap.,  V,  945. 

4  Id.,  XII,  927,  928. 

"What  is  necessary  to  remember  is  that  the  rivers  and  other  channels  of  the 
ancient  ffingdom  of  Poland  would  have  been  in  reality  subjected  to  a  suf- 
ficiently broad  regime  had  not  the  States  which  established  it  kept  the  benefits 
solely  to  themselves."     Pierre  Orban,  Etude  de  Droit  Flurial  International,  138. 

5  Art.  327.  It  was  added  that  the  vessels  of  the  Allied  and  Associated 
Powers  "shall  be  treated  on  a  footing  of  equality  with  national  vessels  as  re- 
gards port  and  harbour  facilities  and  charges  of  every  description,  including 
facilities  for  stationing,  loading  and  unloading,  and  duties  and  charges  of 
tonnage,  harbour,  pilotage,  lighthouse,  quarantine,  and  all  analogous  duties 
and  charges  of  whatsoever  nature,  levied  in  the  name  of  or  for  the  profit  of 
the  Government,  public  functionaries,  private  individuals,  corporations,  or 
establishments  of  any  kind." 

It  was  also  provided  that  the  granting  by  Germany  of  a  preferential  regime 
to  any  of  the  Allied  or  Associated  Powers  or  to  any  other  foreign  Power,  should 

301 


§  174]     GENERAL   RIGHTS   OF  PROPERTY   AND   CONTROL 

§  174.    Free  Zones  in  Ports. 

By  the  same  treaty,  free  zones  existing  in  German  ports  on  Au- 
gust 1,  1914,  were  to  be  maintained;  and  these  zones  together 
with  any  others  which  might  be  estabhshed  in  German  territory 
pursuant  to  the  treaty,  were  to  be  subjected  to  the  regime  for  which 
provision  was  made  in  subsequent  Articles.^  It  was  declared  that 
goods  entering  or  leaving  a  free  zone  should  not  be  subjected  to 
any  import  or  export  duty,  other  than  those  provided  for  in  a 
specified  Article  (Art.  330),  where  the  right  to  levy  duties  on  goods 
leaving  the  free  zone  for  consumption  in  the  country  on  the  terri- 
tory of  which  the  port  of  such  zone  was  situated,  was  acknowledged ; 
and  conversely,  there  was  no  prohibition  of  export  duties  to  be 
levied  on  goods  coming  from  such  country  and  brought  into  the 
free  zone.  On  the  other  hand,  Germany  was  forbidden  to  levy, 
under  any  denomination,  "any  import,  export  or  transit  duty  on 
goods  carried  by  land  or  water  across  her  territory  to  or  from  the 
free  zone  from  or  to  any  other  State."  ^ 

Clauses  Relating  to  the  Elbe,  the  Oder,  the  Niemen  (Russ- 
strom-Memel-Niemen)  and  the  Danube 

§  175.    General  Clauses. 

The  treaty  declared  specified  rivers  to  be  "international." 
The  following  were  so  described :  the  Elbe  (Lahe)  from  its  con- 
fluence with  the  Vltava  (Moldau),  and  the  Vltava  (Moldan)  from 
Prague ;  the  Oder  (Odra)  from  its  confluence  with  the  Oppa ;  the 
Niemen  (Russstrom-lNIemel-Niemen)  from  Grodno;  the  Danube 
from  Ulm,  as  well  as  "all  navigable  parts  of  these  river  systems 
which  naturally  provide  more  than  one  State  with  access  to  the 
sea,  with  or  without  trans-shipment  from  one  vessel  to  another; 
together  with  lateral  canals  and  channels  constructed  either  to 
duplicate  or  to  improve  naturally  navigable  sections  of  the  specified 
river  systems,  or  to  connect  two  naturally  navigable  sections  of  the 
same  river."  ^ 

be  extended  immediately  and  unconditionally  to  all  of  the  Allied  and  Associated 
Powers. 

It  was  declared  that  there  should  be  no  impediment  to  the  movement  of 
persons  or  vessels  other  than  those  arising  from  prescriptions  concerning 
customs,  police,  sanitation,  emigration  and  immigration,  and  those  relating 
to  the  import  and  export  of  prohibited  goods.  Such  regulations  were,  more- 
over, to  be  reasonable  and  uniform,  and  not  to  impede  traffic  unnecessarily. 

This  Article  was  reproduced  in  Art.  290  of  the  treaty  of  peace  with  Austria 
of  Sept.  10,  1919. 

1  Art.  328.     See,  also,  the  details  worked  out  in  Arts.  329-330. 

2  Art.  330. 

3  Art.  331.     It  was  added  that  the  same  provisions  should  be  applied  to  the 

302 


THE   ELBE.     THE   ODER.     THE  NIEMEN  [§  176 

On  these  waterways,  declared  to  be  international,  it  was 
provided  that  the  nationals,  property  and  flags  of  all  Powers 
should  be  treated  on  a  footing  of  perfect  equality,  "no  dis- 
tinction being  made  to  the  detriment  of  the  nationals,  property 
or  flag  of  any  Power  between  them  and  the  nationals,  property 
or  flag  of  the  riparian  State  itself  or  of  the  most  favoured 
nation."  ^ 

Provision  was  made  for  a  temporary  regime  for  these  waterways,^ 
to  be  superseded  by  one  to  be  laid  down  in  a  so-called  General 
Convention  to  be  drawn  up  by  the  Allied  and  Associated  Powers 
and  approved  by  the  League  of  Nations,  with  reference  to  the 
waterways  recognized  in  such  convention  as  having  an  interna- 
tional character.^ 


§  176.    Special  Clauses  Relating  to  the   Elbe,  the  Oder 
and  the  Niemen  (Russstrom-Memel-Niemen). 

The  Elbe  was  to  be  placed  under  the  administration  of  an  in- 
ternational Commission,'*  and  likewise  the  Oder.^  In  each  case 
such  commission  was  to  comprise  representatives  of  specified 
non-riparian  as  well  as  riparian  States.  The  Niemen  (Russstrom- 
Memel-Niemen)  was  to  be  placed  under  such  a  commission  upon 
the  request  made  to  the  League  of  Nations  by  any  riparian  State  ; 
and  in  such  event,  the  commission  was  to  comprise  one  repre- 
sentative of  each  riparian  State,  and  three  representatives  of  other 
States  specified  by  the  League  of  Nations.^ 

Rhine-Danube  navigable  waterway,  should  it  be  constructed  under  conditions 
laid  down  in  Art.  353.  See,  also,  Art.  291  of  the  treaty  of  peace  with  Austria, 
with  respect  to  general  causes  relating  to  the  Danube. 

1  Art.  332,  where  it  was  added  that  German  vessels  should  not  be  entitled 
to  carry  passengers  or  goods  by  regular  services  between  the  ports  of  any 
Allied  or  Associated  Power,  without  its  special  authority.  See,  also.  Arts.  292 
and  293  of  the  treaty  of  peace  with  Austria. 

2  Arts.  333-337.    See,  also,  Arts.  294-298  of  the  treaty  of  peace  with  Austria. 
^  Art.  338,  where  it  was  declared  that  the  General  Convention  should  apply 

in  particular  to  the  whole  or  part  of  the  above-mentioned  river  systems  of 
the  Elbe,  the  Oder,  the  Niemen  and  the  Danube,  and  such  other  parts  of 
those  river  systems  as  might  be  covered  by  a  general  definition.  Art.  339 
made  provision  for  the  cession  by  Germany  to  the  Allied  and  Associated 
Powers  of  river  craft. 

"  Art.  340.  5  Art.  341. 

*  Art.  342.  With  reference  to  the  times  of  meeting  and  the  functions  of 
these  commissions  see  Arts.  343-345.  According  to  Art.  343,  each  of  these 
commissions  was  to  proceed  immediately  to  prepare  a  project  for  the  revision 
of  the  existing  international  agreements  and  regulations,  in  conformity  with 
the  General  Convention  referred  to  in  Art.  338,  should  it  have  been  already 
concluded.  In  the  absence  of  such  convention,  the  project  for  revision  was 
to  conform  with  the  principles  of  Arts.  332  to  337  of  the  treaty. 

303 


§  177]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

§  177.    Special  Clauses  Relating  to  the  Danube. 

It  was  declared  that  the  European  Commission  of  the  Danube 
was  to  re-assume  the  powers  which  it  had  possessed  before  the  war. 
Nevertheless,  "as  a  provisional  measure",  it  was  agreed  that  only- 
representatives  of  Great  Britain,  France,  Italy  and  Roumania 
should  constitute  the  Commission.^  From  the  point  where  the 
competence  of  the  European  Commission  ceased,  the  Danube 
system,  as  referred  to  in  the  general  clauses  (Art.  331),  was  from 
Ulm,  a  point  in  the  upper  river  in  Wurtemberg,  to  be  placed  under 
the  administration  of  an  International  Commission  composed  of 
two  representatives  of  German  riparian  States,  one  representative 
of  each  other  riparian  State,  and  one  representative  of  each  non- 
riparian  State  represented  in  the  future  on  the  European  Commis- 
sion of  the  Danube.^ 

Germany  agreed  to  accept  the  regime  to  be  established  for  the 
Danube  by  a  Conference  of  the  Powers  to  be  nominated  by  the 
Allied  and  Associated  Powers,  and  which  should  meet  within  one 
year  after  the  coming  into  force  of  the  treaty,  and  at  which  German 
representatives  might  be  present.^  The  mandate  given  by  the 
Treaty  of  Berlin  of  July  13,  1878,  to  Austria-Hungary,  and  trans- 
ferred by  her  to  Hungary,  to  carry  out  works  at  the  Iron  Gates, 
was  abrogated.^  Germany  accepted  the  important  obligation 
to  make  to  the  European  Commission  of  the  Danube  "all  resti- 
tutions, reparations  and  indemnities  for  damages  inflicted  on  the 
Commission  during  the  war."^  Germany  undertook  to  apply  to 
such  deep-draught  Rhine-Danube  navigable  waterway  as  might 
be  constructed  the  regime  prescribed  in  Articles  332-338.^ 

1  Art.  346. 

2  Art.  347.  This  International  Commission  was  to  undertake  provisionally 
the  administration  of  the  river  in  conformity  with  the  provisions  of  Arts.  332 
to  337,  until  such  time  as  a  definite  statute  regarding  the  Danube  was  con- 
cluded by  the  Powers  nominated  by  the  Allied  and  Associated  Powers.  Art. 
348.  See,  also,  Arts.  301-308,  of  the  Austrian  treaty  of  peace  of  Sept.  10, 
1919. 

3  Art.  349  of  the  German  treaty  of  peace  of  June  28,  1919. 

*  Art.  350.  According  to  Art.  351,  should  the  Czecho-Slovak  State,  the 
Serb-Croat-Slovene  State  or  Roumania,  with  the  authorization  of,  or  under 
mandate  from,  the  International  Commission,  undertake  maintenance,  im- 
provement, weir  or  other  works  on  a  part  of  the  river  system  forming  a  frontier, 
those  States  were  to  enjoy  on  the  opposite  bank,  and  also  on  the  part  of  the 
bed  outside  of  their  territory,  all  necessary  facilities  for  the  survey,  execution 
and  maintenance  of  such  works. 

•^  Art.  352. 

6  Art.  353.  It  may  be  noted  that  the  Special  Clauses  relating  to  the  Danube 
were  reproduced  as  Arts.  301-308,  in  the  treaty  of  peace  with  Austria.  But  see 
Art.  309  of  the  latter  treaty,  with  reference  to  the  use  by  a  riparian  State  of 
the  hydraulic  system  located  within  the  territory  of  another. 

304 


THE  RHINE   AND  THE  MOSELLE  [§  178 

§  178.    Clauses  Relating  to  the  Rhine  and  the  Moselle. 

It  was  declared  that  from  the  time  of  the  coming  into  force 
of  the  treaty,  the  convention  of  ]Mannheim  of  October  17,  1868, 
together  with  the  final  protocol  thereof,  should  continue  to  govern 
navigation  on  the  Rhine,  subject,  however,  to  conditions  which 
were  laid  down.^  Any  provisions  of  that  convention  proving  to 
be  in  conflict  with  those  of  the  General  Convention  (referred 
to  in  Article  3.38)  were  to  yield  to  the  latter.  The  so-called  Central 
Commission  provided  for  in  the  convention  of  ^Mannheim  and  by 
the  treaty  of  peace,  was  to  draw  up  a  project  of  revision  of  the 
convention  of  1868,  the  project  to  be  in  harmony  with  the  pro- 
visions of  the  General  Convention,  should  it  have  been  concluded 
by  that  time,  and  to  be  submitted  to  the  Powers  represented  on 
the  Central  Commission.  Germany  agreed  to  adhere  to  the  proj- 
ect so  drawn  up.-  The  Central  Commission  provided  for  in  the 
convention  of  ^lannheim  was  to  consist  of  nineteen  members, 
representative  of  specified  non-riparian  as  well  as  riparian  States.^ 

It  was  agreed  that  vessels  of  all  nations,  and  their  cargoes, 
should  have  the  same  rights  and  privileges  as  those  which  were 
granted  to  vessels  belonging  to  the  Rhine  navigation,  and  to  their 
cargoes.  Moreover,  none  of  the  provisions  contained  in  specified 
Articles  (15-20,  and  26)  of  the  convention  of  Mannheim,  in  Ar- 
ticle 4  of  the  final  protocol  thereof,  or  in  later  con\'entions,  were 
to  impede  the  free  navigation  of  vessels  and  crews  of  all  nations 
on  the  Rhine  and  on  waterways  to  which  such  conventions  applied, 
subject  to  compliance  with  pilotage  regulations  and  police  measures 
drawn  up  by  the  Central  Commission.^ 

Subject  to  requirements  of  the  convention  of  ]\Iannheim,  or  of 

1  Art.  354. 

^  The  convention  of  Mannheim  was  to  be  immediately  modified  according 
to  the  provisions  of  the  relevant  Articles  of  the  treaty  of  peace.  According 
to  Art.  354,  the  Allied  and  Associated  Powers  reserved  to  themselves  the  right 
to  arrive  at  an  understanding  in  this  connection  with  Holland,  Germany 
agreeing  to  accede,  if  required,  thereto. 

'  The  representatives  were  to  be  apportioned  as  follows  :  two  of  the  Nether- 
lands ;  two  of  Switzerland ;  four  of  German  riparian  States ;  four  of  France 
(which  in  addition  was  to  appoint  the  President  of  the  Commission) ;  two  of 
Great  Britain;  two  of  Italy;  two  of  Belgium.  Whatever  the  number  of 
members  present,  each  delegation  was  to  have  the  right  to  record  a  number  of 
votes  equal  to  the  number  of  representatives  allotted  to  it. 

*  Art.  356.  It  was  declared  that  the  provisions  of  Art.  22  of  the  convention 
of  Mannheim,  and  of  Art.  5  of  the  final  protocol  thereof  should  be  applied  only 
to  vessels  registered  on  the  Rhine.  The  Central  Commission  was  to  decide 
on  the  steps  to  be  taken  to  insure  that  other  vessels  satisfied  the  conditions  of 
the  general  regulations  applying  to  navigation  on  the  Rhine.     Id. 

Art.  357  provided  for  1;he  cession  by  Germany  to  France  of  river  craft,  etc., 
as  well  as  of  docks,  warehou.ses,  installations,  anchorage  accommodations, 
etc.,  of  public  or  private  ownership,  in  the  port  of  Rotterdam. 

305 


§  178]     GENERAL    RIGHTS    OF   PROPERTY   AND    CONTROL 

the  convention  which  might  be  substituted  for  it,  and  to  the  stipu- 
lations of  the  treaty,  France  was  to  enjoy  on  the  whole  course  of 
the  Rhine  included  between  the  two  extreme  points  of  the  French 
frontiers  :  (a)  the  right  to  take  water  from  the  Rhine  to  feed  nav- 
igation and  irrigation  canals  (constructed  or  to  be  constructed), 
or  for  any  other  purpose,  and  to  execute  on  the  German  bank  all 
works  necessary  for  the  exercise  of  such  right ;  (b)  the  exclusive 
right  to  the  power  derived  from  works  of  regulation  on  the  river, 
subject  to  payment  to  Germany  of  the  value  of  half  the  power 
actually  produced.^  Similarly,  Belgium  was  accorded  the  right 
of  taking  water  from  the  Rhine  to  feed  the  Rhine-]\Ieuse  navigable 
waterway  for  which  the  treaty  made  subsequent  provision.  The 
exercise  of  these  rights  of  diversion  of  water  was  not,  however, 
to  interfere  with  navigability,  or  to  reduce  facilities  for  navigation, 
either  in  the  bed  of  the  Rhine  or  in  the  derivations  which  might 
be  substituted  therefor.  Nor  was  it  to  involve  any  increase  in 
the  tolls  formerly  levied  under  the  convention  iti  force.  All  pro- 
posed schemes  were  to  be  laid  before  the  Central  Commission  in 
order  that  it  might  assure  itself  that  such  conditions  were  com- 
plied with.  Germany,  moreover,  in  order  to  insure  the  proper 
and  faithful  execution  of  the  foregoing  provisions  (a)  and  (fe), 
bound  herself  not  to  undertake  or  to  allow  the  construction  of 
any  lateral  canal  or  any  derivation  on  the  right  bank  of  the  river 
opposite  the  French  frontiers.  Germany  recognized  the  possession 
by  France  of  the  right  of  support  on,  and  the  right  of  way  over 
all  lands  situated  on  the  right  bank  which  might  be  required  in 
order  to  survey,  to  build,  and  to  operate  weirs,  which  France,  with 
the  consent  of  the  Central  Commission,  might  subsequently  de- 
cide to  establish.^  Switzerland,  upon  its  demand,  and  with  the 
approval  of  the  Central  Commission,  was  to  enjoy  the  same  rights 
for  that  part  of  the  river  forming  her  frontier  with  other  riparian 
States.^     It  was  declared  that  subject  to  the  preceding  provisions, 

^  Art.  358.  The  payment  by  France  to  Germany  was  to  take  into  account 
the  cost  of  the  works  necessary  for  producing  the  power,  and  was  to  be  made 
either  in  money  or  in  power,  and  in  default  of  agreement,  to  be  determined  by 
arbitration.  For  this  purpose  France  alone  was  to  have  the  right  to  carry 
out  in  the  part  of  the  river  mentioned,  all  works  of  regulation  (weirs  or  other 
works),  which  she  might  consider  necessary  for  the  production  of  power. 

2  In  accordance  with  such  consent,  France  was  to  be  entitled  to  decide 
upon  and  fix  the  limits  of  the  necessary  sites,  and  was  to  be  permitted  to  occupy 
such  lands  after  a  period  of  two  months  after  simple  notification,  subject  to 
the  payment  by  her  to  Germany  of  indemnities  of  which  the  total  amount 
was  to  be  fixed  by  the  Central  Commission.  Germany  was  to  make  it  her 
business  to  indemnify  the  proprietors  whose  property  was  burdened  with  such 
servitudes  or  permanently  occupied  by  the  works.     Art.  358. 

'  Art.  358.     Germany  also  agreed  to  hand  over  to  the  French  Government, 

306 


THE   RHINE   AND  THE  MOSELLE  [§  178 

no  works  were  to  be  carried  out  in  the  bed  or  on  either  bank  of  the 
Rhine  where  it  formed  the  boundary  of  France  and  Germany 
without  the  previous  approval  of  the  Central  Commission  or  of 
its  agents.^ 

It  was  agreed  that  should  Belgium  within  twenty-five  years 
from  the  coming  into  force  of  the  treaty  decide  to  create  a  deep- 
draft  Rhine-Meuse  navigable  waterway,  in  the  region  of  Ruhr- 
ort,  Germany  should  be  bound  to  construct,  in  accordance  with 
plans  communicated  by  Belgium,  after  agreement  with  the  Central 
Commission,  the  portion  of  the  waterway  situated  within  German 
territory.  The  Belgian  Government  was,  for  such  purpose,  to 
have  the  right  to  carry  out  on  the  ground  all  necessary  surveys. 
This  navigable  waterway  was  to  be  placed  under  the  same  admin- 
istrative regime  as  the  Rhine  itself,  and  the  division  of  the  cost 
of  initial  construction,  including  indemnities,  among  the  States 
crossed  by  the  waterway,  was  to  be  made  by  the  Central  Com- 
mission.^ 

Germany  agreed  to  offer  no  objection  to  any  proposals  of  the 
Central  Rhine  Commission  for  the  extension  of  its  jurisdiction : 
(a)  to  the  Moselle,  below  the  Franco-Luxemburg  frontier  down  to 
the  Rhine,  subject  to  the  consent  of  Luxemburg ;  (6)  to  the  Rhine 
above  Basle  up  to  the  Lake  of  Constance,  subject  to  the  consent 
of  Switzerland ;  (c)  to  the  lateral  canals  and  channels  which  might 
be  established  either  to  duplicate  or  to  improve  naturally  navigable 
sections  of  the  Rhine  or  the  Moselle,  or  to  connect  two  naturally 
navigable  sections  of  those  rivers,  and  also  any  other  parts  of  the 
Rhine  river  system  which  might  be  covered  by  the  General  Con- 
vention for  which  provision  was  earlier  made  (in  Article  338).^ 

during  the  month  following  the  coming  into  force  of  the  treaty,  all  projects, 
designs,  drafts  of  concessions  and  of  specifications  concerning  the  regulation 
of  the  Rhine  for  any  purpose  whatever  which  might  have  been  drawn  up  or 
received  by  the  Government  of  Alsace-Lorraine  or  of  the  Grand  Duchy  of 
Baden. 

'  Art.  359.  According  to  Art.  360,  France  reserved  the  option  of  substitut- 
ing herself  as  regards  the  rights  and  obligations  resulting  from  agreements 
arrived  at  between  the  Government  of  Alsace-Lorraine  and  the  Grand  Duchy 
of  Baden  concerning  the  works  to  be  carried  out  on  the  Rhine ;  and  she  was 
also  permitted  to  denounce  such  agreements  within  a  term  of  five  years  from 
the  coming  into  force  of  the  treaty. 

2  Art.  36 L  It  was  declared  that  .should  Germany  fail  to  carry  out  all  or 
any  of  such  works,  the  Central  Commission  should  be  entitled  to  carry  them 
out  instead ;  and  for  such  purpose  might  decide  upon  and  fix  the  limits  of  the 
necessary  sites  and  occupy  the  ground  after  a  period  of  two  months  after 
simple  notification,  subject  to  the  payment  of  indemnities  to  be  fixed  by  it 
and  paid  to  Germany.     Id. 

3  Art.  362. 

Clauses  Giving  to  the  Czecho-Slovak  State  the  Use  of  Northern  Ports.  Arts.  363 
and  364  comprised  clauses  providing  for  the  lease  by  Germany  to  the  Czecho- 

307 


§  179]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

§  179.   Poland  and  the  Vistula. 

As  the  territory  of  the  new  Pohsh  State  embraced  the  country 
traversed  by  the  Vistula,  save  that  at  the  mouth  of  the  river  where 
it  passed  through  that  assigned  to  the  Free  City  of  Danzig,  the 
Principal  Allied  and  Associated  Powers  undertook  (in  the  treaty 
of  peace  with  Germany)  to  negotiate  a  treaty  between  the  Polish 
Government  and  the  City,  with  a  view  to  insure  to  Poland  the  con- 
trol and  administration  of  the  river,  and  enjoyment  of  the  freest 
use  thereof.^  Certain  of  these  uses  were  specified,  and  manifested 
a  design  to  remove  every  possible  restriction  which  might  other- 
wise prove  an  obstacle  to  uninterrupted  navigation  to  and  from 
the  Baltic. 

§  180.    General  Results. 

The  foregoing  arrangements  of  1919,  pertaining  to  navigation, 
presented  certain  significant  aspects,  of  which  the  following  may 
be  noted : 

(a)  The  privileges  of  inland  navigation  established  in  favor  of 
the  Allied  and  Associated  Powers ; 

(6)  The  reestablishment  of  free  zones  in  ports  of  Germany ; 

(c)  The  internationalization  of  important  river  systems  and 
their  appurtenances,  for  the  benefit  of  non-riparian  as  well  as  ri- 
parian States ; 

(d)  The  placing  of  such  waterways  under  the  administration 
of  commissions  representative  of  both  non-riparian  and  riparian 

Slovak  State  for  a  period  of  ninety-nine  years,  of  areas  within  the  ports  of 
Hamburg  and  Stettin,  such  areas  to  be  placed  under  the  regime  of  free  zones, 
and  to  be  used  for  the  direct  transit  of  goods  coming  from  or  going  to  that 
State.  The  delimitation  of  these  areas,  their  equipment,  exploitation,  and  in 
general  all  conditions  for  their  utilization,  including  the  amount  of  rental,  was 
to  be  decided  by  a  specified  commission.  Such  conditions  were  regarded  as 
susceptible  of  revision  every  ten  years  in  the  same  manner.  Germany  agreed 
in  advance  to  adhere  to  the  decisions  so  taken. 

^  Art.  104.     The  follo-wang  were  among  the  objects  of  the  proposed  treat.y  : 

"(1)  To  effect  the  inclusion  of  the  Free  City  of  Danzig  within  the  Polish 
customs  frontiers,  and  to  establish  a  free  area  in  the  port ; 

"  (2)  To  ensure  to  Poland  without  any  restriction  the  free  use  and  service 
of  all  waterways,  docks,  basins,  wharves  and  other  works  within  the  territory 
of  the  Free  City  necessary  for  Polish  imports  and  exports ; 

"  (3)  To  ensure  to  Poland  the  control  and  administration  of  the  Vistula  and 
of  the  whole  railway  system  within  the  Free  City,  except  such  street  and  other 
railways  as  serve  primarily  the  needs  of  the  Free  City,  and  of  postal,  tele- 
graphic and  telephonic  communication  between  Poland  and  the  port  of  Danzig ; 

"  (4)  To  ensure  to  Poland  the  right  to  develop  and  improve  the  waterways, 
docks,  basins,  wharves,  railways  and  other  works  and  means  of  communica- 
tion mentioned  in  this  Article,  as  well  as  to  lease  or  purchase  through  ap- 
propriate processes  such  land  and  other  property  as  may  be  necessary  for  these 
purposes." 

308 


THE  CONGO.     THE   NIGER  [§  181 

States ;  and  the  special  application  of  this  principle  with  respect 
to  the  Rhine  and  the  Danube ;  ^ 

(e)  The  arrangement  for  a  new  regime  under  the  General  Con- 
vention to  be  drawn  up  by  the  x\llied  and  Associated  Powers  and 
approved  by  the  League  of  Nations,  as  well  as  the  regime  to  be 
laid  down  for  the  Danube  by  the  contemplated  Conference  of  the 
Powers ; 

(/)  The  scope  of  the  hydrotechnical  privileges  with  respect  to 
the  Rhine,  yielded  to  France  and  Switzerland  ; 

(g)  The  obligation  imposed  upon  Germany  to  make  restitution 
and  reparation  to  the  European  Commission  of  the  Danube  for 
damages  inflicted  upon  it  during  the  war. 

(e) 
International  Streams  of  Africa 

§  181.   The  Congo.     The  Niger. 

The  General  Act  of  the  Berlin  Conference  of  February  26,  1885, 
made  significant  application  of  the  fundamental  principles  of  the 
Congress  of  Vienna  to  the  rivers  Congo  and  Niger .^  With  respect 
to  both,  it  was  provided  that  navigation  of  the  stream  and  the  af- 
fluents thereof,  as  well  as  of  roads,  railways,  or  lateral  canals  that 
might  be  constructed  with  the  special  view  of  obviating  unnavi- 
gability  or  of  correcting  imperfections  of  a  river  route,  should  be 
and  remain  "free  for  the  merchant  ships  of  all  nations  equally, 
whether  carrying  cargo  or  ballast,  for  the  transportation  of  both 
merchandise  and  passengers."  ^  The  subjects  and  flags  of  all 
nations  were  treated  on  a  footing  of  perfect  equality  "  not  only  for 
the  direct  navigation  from  the  open  sea  to  the  inland  ports  ",  and 
vice  versa,  "but  also  for  the  great  and  small  coasting  trade,  and 
for  the  boat  traffic  along  the  course  of  the  river."  It  was  declared 
that  throughout  the  courses  and  in  the  mouths  of  both  the  Congo 
and  the  Niger,  no  distinction  should  be  made  between  the  subjects 

^  It  may  be  noted  that  the  United  States  was  not  to  be  represented  on  any 
of  these  commissions. 

2  For  the  text  of  the  General  Act,  see  Brit,  and  For.  State  Pap.,  LXXVI,  4; 
also  Senate  Ex.  Doc.  No.  196,  49  Cong.,  1  Sess.,  297. 

3  Chapter  IV,  embracing  Arts.  XIII  to  XXV,  embodied  an  Act  for  the 
navigation  of  the  Congo,  while  Chapter  V,  embracing  Arts.  XXVI  to  XXXV, 
made  provision  for  the  navigation  of  the  Niger.  Attention  should  also  be 
called  to  the  preamble  of  the  General  Act  and  to  Art.  II  thereof. 

See  the  illuminating  report  of  Baron  de  Courcel  in  behalf  of  the  commission 
which  drafted  the  instruments  for  the  regulation  of  the  navigation  of  the 
Congo  and  the  Niger,  Senate  Ex.  Doc.  No.  196,  49  Cong.,  1st  Sess.,  93; 
also  protocol  of  the  session  of  Nov.  15, 1884,  of  the  Berlin  Conference,  id.,  23. 

309 


§  181]     GENERAL   RIGHTS    OF    PROPERTY   AND    CONTROL 

of  riparian  States  and  those  of  non-riparian  States,  and  that  no 
exclusive  privilege  of  navigation  should  be  granted  to  any  com- 
panies, corporations  or  private  persons  whatsoever.  These  pro- 
visions were,  it  was  said,  "recognized  by  the  signatory  powers  as 
being  henceforth  a  part  of  international  law."  With  respect  to 
both  rivers  it  was  declared  that  there  should  be  levied  no  maritime 
or  river  toll  based  on  the  mere  fact  of  navigation,  nor  any  tax  on 
goods  aboard  of  ships,  and  that  there  should  only  be  collected 
taxes  or  duties  having  the  character  of  an  equivalent  for  services 
rendered  in  navigation.^  Provision  was  also  made  for  the  neu- 
tralization of  both  streams  in  the  event  of  war.^  With  respect  to 
the  Congo  an  international  commission  was  created  and  clothed 
with  broad  powers  for  the  purpose  of  executing  the  provisions 
agreed  upon.^ 

These  liberal  arrangements,  and  particularly  those  dealing  with 
the  Congo,  were  possible  partly  because  the  waters  in  question 
traversed  territory  of  which  the  occupants  were  chiefly  a  native 
population  unfamiliar  with  European  civilization,  and  of  w^hich  the 
sovereignty  was  not  always  lodged  in  an  independent  State  recog- 
nized as  such.  Moreover,  the  commercial  designs  of  the  contract- 
ing Powers,  as  well  as  the  welfare  of  the  inhabitants  concerned, 
were  deemed  to  be  enhanced  rather  than  thwarted  by  the  plan 
adopted.  It  was  natural  that  under  such  circumstances  broadest 
application  of  fundamental  principles  should  have  met  with 
approval,  and   that  they  should  have   been  supported    by  the 

1  In  certain  other  respects  the  provisions  concerning  the  regulations  for  the 
navigation  of  the  Congo  were  not  identical  with  those  relating  to  the  Niger. 

2  Arts.  XXV  and  XXXIII.  It  is  significant  that  Belgium  at  the  outbreak 
of  The  World  War  in  August,  1914,  after  its  own  territory  had  been  invaded, 
was  solicitous,  for  humanitarian  reasons,  that  the  field  of  hostilities  should 
not  extend  to  Central  Africa,  and  that  pursuant  to  Art.  XI  of  the  General  Act 
of  the  Berlin  Conference,  European  colonies  within  the  basin  of  the  Congo 
should  be  neutralized.  Belgian  Gray  Book,  Misc.  No.  12  [1914],  Cd.  7627, 
Nos.  57,  58,  59,  74,  75  and  76. 

'  Arts.  XVII-XXIV.  The  relation  of  Great  Britain  to  Nigeria,  traversed 
by  the  lower  waters  of  the  Niger  rendered  inapphcable  the  establishment  of  an 
international  commission  for  that  river  such  as  was  designed  for  the  Congo. 

The  Persian  River  Karun.  In  a  note  to  the  representatives  of  foreign 
Powers  at  Teheran,  Oct.  30,  1888,  the  Persian  Government  announced  that 
commercial  steamers  of  all  nations,  without  exception,  besides  sailing  vessels 
which  formerly  navigated  the  Karun  River,  might  undertake  the  transporta- 
tion of  merchandise  in  that  river  "from  Muhammereh  to  the  dyke  at  Ahvaz, 
but  it  is  on  the  condition  that  they  do  not  pass  the  dyke  at  Ahvaz  upwards, 
as  from  the  dyke  upwards  the  river  navigation  is  reserved  to  the  Persian  Gov- 
ernment and  its  subjects,  and  the  tolls  which  the  Persian  Government  will 
organize  shall  be  paid  at  Muhammereh.  Such  vessels  are  not  to  carry  goods 
prohibited  by  the  Persian  Government,  and  vessels  are  not  to  stay  longer  than 
necessary  for  the  unloading  and  loading  of  commercial  loads."  Brit,  and  For. 
State  Pap.,  LXXIX,  781. 

310 


CERTAIN  GENERAL  CONCLUSIONS  [§  182 

creation  of  an  international  commission  given  large  powers  of 
control.^ 

It  should  be  observed,  however,  that  the  Congo  Commission 
"never  had  an  effective  life."  ^  This  circumstance,  while  not 
necessarily  weakening  the  value  of  the  general  principles  enunciated 
by  the  Berlin  Conference,  served  to  emphasize  the  insufficiency 
and  inapplicability  to  the  Congo  River  of  the  administrative 
regime  thus  sought  to  be  established. 

(f) 

§  182.    Certain  General  Conclusions. 

The  true  basis  of  any  right  possessed  by  a  State  to  navigate  the 
waters  of  a  river  traversing  foreign  territory  is  believed  to  be  the 
general  interest  of  the  family  of  nations  that  such  a  privilege  be 
not  withheld.^  That  interest  must  vary  according  to  geographical 
considerations.^  It  is  strongest  where  a  riparian  State  upstream 
seeks  access  to  the  sea.  The  international  community  is  truly 
solicitous  that  each  State  in  attempting  to  realize  its  legitimate 
aspirations  should  utilize  fully  those  natural  channels  of  water 

1  J.  C.  Carlomagno,  El  Derecho  Fluvial  Internacional,  56-72 ;  E.  Engelhardt, 
Histoire  du  Droit  Fluvial  Conventiormel,  98-102;  A.  Berges,  Du  Regime  de 
Navigation  des  Fleuves  Internationaux,  96-109;  G.  Kaeckenbeeck,  Inter- 
national Rivers,  137-171,  and  documents  quoted ;  Pierre  Orban,  Etude  de  Droit 
Fluvial  International,  275-317;  Bonfils-Fauchille,  7  ed.,  §§  530  and  531,  and 
periodical  literature  there  cited. 

See  correspondence  between  Great  Britain  and  Portugal  respecting  the 
navigation  of  the  rivers  Zambesi  and  Shire,  1876-1877,  Brit,  and  For.  State 
Pap.,  LXVIII,  1345-1352;  also  correspondence  between  the  same  States, 
1887-1888,  in  which  the  right  of  Portugal  to  close  the  Zambesi  was  not  ad- 
mitted by  Great  Britain,  id.,  LXXIX,  1062-1152;  Portuguese  decree  of 
Nov.  18,  1890,  with  respect  to  free  navigation  of  the  Zambesi  "in  accordance 
with  the  principles  which  the  Governments  of  France  and  Great  Britain 
agreed  to  establish  on  the  Niger  in  virtue  of  the  General  Act  of  the  Conference 
of  Berlin  in  1885",  id.,  LXXXII,  338;  Portuguese  regulations  for  the  naviga- 
tion of  the  Zambesi  and  Shire  of  May  18,  1892,  id.,  LXXXVII,  1108. 

See  agreement  between  Great  Britain  and  Germany  of  March  11,  1913, 
respecting  (in  part)  the  regulation  of  navigation  on  the  Cross  River,  a  small 
independent  stream  flowing  from  the  Cameroons  through  Nigeria  to  the  sea. 
Brit,  and  For.  State  Pap.,  CVI,  782,  786. 

2  Joseph  P.  Chamberlain,  in  Yale  L.  J.,  XXVIII,  519,  522;  also  Francis 
Bowes  Sayre,  Experiments  in  International  Administration,  New  York,  1916 
84-87. 

'  Compare  the  reasoning  of  Mr.  Jefferson,  Secy,  of  State,  in  1792.  Cj . 
The  Mississippi,  sripra,  §  161.  Compare  also  theory  of  Mr.  Adams,  Secy,  of 
State,  in  communication  to  Mr.  Rush,  Minister  to  Great  Britain,  June  23, 
1823,  Am.  State  Pap.,  For.  Rel.,  VI,  757,  758. 

Hall,  Higgins'  7  ed.,  p.  136,  note  1,  commenting  on  the  opinions  of  various 
writers  of  the  nineteenth  century. 

*  This  circumstance,  which  has  been  a  decisive  factor  in  international  prac- 
tice, appears  oftentimes  to  have  been  ignored  by  writers  endeavoring  to 
formulate  plans  for  general  adoption. 

311 


§  182]     GENERAL   RIGHTS   OF   PROPERTY    AND    CONTROL 

communication  which  border  or  pass  throuj^h  its  domain,  and 
each  may  confidently  invoke  that  sohcitude  in  testing  or  proclaim- 
ing the  reasonableness  of  its  demands.^ 

The  general  interest  of  the  family  of  nations  acknowledges  also 
the  equities  of  the  several  riparian  States  with  respect  to  the  navi- 
gation of  waters  upstream  or  on  the  farther  side  of  a  boundary 
formed  by  the  thalweg.  It  heeds  also  the  claims  of  non-riparian 
and  of  oversea  States,  but  its  respect  therefor  is  measured  in  part 
according  to  the  navigability  of  the  particular  stream  by  vessels 
sailing  from  their  ports.  It  may  be  doubted  whether  enlightened 
States  as  a  whole  are  concerned  with  any  claim  not  in  fact  capable 
of  actual  use  by  a  claimant. 

The  general  international  interest  has  given  rise  to  numerous 
agreements  among  the  States  most  deeply  concerned.  These 
compacts  have  developed  what  may  be  called  a  fluvial  conventional 
law,  measuring  and  portraying  the  extent  to  which  States  have  in 
practice  responded  to  the  requirements  of  the  international  society. 
It  is  to  be  observed  that  treaties  have  generally  not  purported  to 
provide  for  more  than  the  requirements  of  the  contracting  parties 
with  respect  to  the  particular  river  concerned.^  Even  Acts  such 
as  those  of  the  Congress  of  Vienna  or  of  the  Berlin  Conference 
must  be  regarded  as  having  been  designed  primarily  to  apply  the 
principles  enunciated  to  the  problems  peculiar  to  special  groups 
of  rivers  within  specified  areas.^  Inasmuch  as  fluvial  conditions 
in  Europe,  in  North  America,  in  South  America  and  in  Africa  are 
not  the  same,  and  differ  sharply  according  to  geographical  and 

1  This  idea  appears  to  have  been  reflected  by  Mr.  Gallatin,  American 
Minister  to  Great  Britain,  in  his  discussion  with  British  plenipotentiaries 
touching  the  claim  of  the  United  States  to  navigate  the  St.  Lawrence.  He 
contended  that  "it  was  a  right  essential  to  the  condition  and  wants  of  human 
society,  and  conformable  to  the  voice  of  mankind  in  all  ages  and  countries." 
He  added  that  "the  principle  on  which  it  rested  challenged  such  universal 
assent  that,  wherever  it  had  not  been  allowed,  it  might  be  imputed  to  the 
triumph  of  power  or  injustice  over  right."  See  communication  to  Mr.  Adams, 
Secy,  of  State,  Aug.  12,  1824,  Am.  State  Pap.,  F9r.  Rel.,  VI,  758,  760.  Also 
memorandum  on  the  American  claim  to  the  navigation  of  the  St.  La'WTence 
prepared  by  Mr.  Rush,  id.,  769. 

It  is  not  without  significance  that  formal  proposal  in  1918,  that  free  and 
secure  access  to  the  sea  be  assured  the  population  of  a  newly  erected  Polish 
State  was  made  by  the  Chief  Executive  of  an  American  country,  who  thereby 
voiced  the  actual  concern  of  the  family  of  nations  that  each  new  member 
thereof  should  enjoy  the  full  benefit  of  its  natural  water  communications  with 
the  ocean.  President  Wilson,  address  to  the  Congress,  Jan.  8,  1918,  H.  Doc. 
765.  65  Cong.,  2  Sess. 

'^  This  has  been  conspicuously  true  in  the  case  of  treaties  regulating  the 
navigation  of  rivers  traversing  or  bounding  the  United  States. 

*  It  is  not  intimated  that  these  Acts  did  not  give  expression  to  a  broader 
design.  It  is  merely  suggested  that  the  object  of  chief  concern  to  the  negoti- 
ators was  the  regulation  of  navigation  within  particular  groups  of  rivers. 

312 


THE   PRINCIPLES  INVOLVED  [§  183 

other  conditions  distinctive  of  each  continent,  the  attempt  still 
remains  futile  t'o  lay  down  rules  applicable  alike  to  all  international 
waterways.     Riparian  States  have  not  sought  to  do  so. 

The  treaty  of  peace  with  Germany  of  June  28,  1919,  gave  heed 
to  every  possible  claim  of  non-riparian  States  of  every  continent 
to  enjoy  privileges  of  navigation  in  the  particular  rivers  recog- 
nized as  having  an  international  character.  It  was  not,  however, 
deemed  necessary  to  enunciate  in  that  document  a  principle  of  law, 
and  still  less,  to  intimate  to  what  extent  it  should  be  applied  to 
streams  outside  of  Europe.  The  acquisition  by  certain  non-ri- 
parian European  Powers  of  a  right  to  participate  in  the  adminis- 
trative control  of  rivers  named  in  the  treaty  was  merely  an  inci- 
dent in  the  attempt  of  the  Principal  Allied  and  Associated  Powers 
in  terminating  the  war,  to  establish  a  new  order  of  things  of  their 
own  devising  with  respect  to  navigation  in  streams  passing  through 
or  bounding  the  territories  of  their  enemies.  The  contemplated 
submission  to  the  League  of  Nations  of  the  fresh  regime  to  be  laid 
down  in  the  General  Convention  as  drawn  up  by  those  Powers, 
gave  hope  that  no  rules  of  navigation  injurious  to  a  stream  as  a 
whole,  or  to  any  riparian  proprietor,  would  be  promulgated. 
From  the  ultimate  treatment  of  the  Rhine  or  the  Danube  (as  the 
result  of  the  Conference  relative  to  the  latter),  there  is  not,  how- 
ever, necessarily  to  be  derived  the  regime  which  should  be  applied 
to  the  St.  Lawrence  or  the  Amazon. 

(5) 
Diversion  of  Waters 

(a) 

§  183.   The  Principles  Involved. 

The  diversion  of  the  waters  of  an  international  stream  for  any 
purposes,  such  as  those  of  sanitation,  navigation,  power  or  irri- 
gation, tends  to  interfere  with  the  fullest  use  of  the  river  by  all 
riparian  proprietors.  There  may  be  said  to  be  an  essential  con- 
flict between  the  interest  of  the  stream  as  a  whole,  and  that  of  the 
particular  State  diverting  its  waters.  Where  a  river  traverses 
or  serves  as  the  boundary  of  the  territories  of  several  States,  the 
existence  of  the  river  interest,  as  such,  becomes  the  more  apparent, 
because  of  the  common  concern  of  all  in  its  welfare. 

In  the  case  of  a  non-navigable  river,  the  upstream  proprietor 
of  the  territory  on  both  sides  of  the  stream  may  in  fact  claim  the 

313 


§  183]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

right  to  divert  at  will  and  without  restraint  such  waters  as  it  may 
require,  and  that  regardless  of  the  eflect  produced  upon  any  pro- 
prietor downstream.  Such  a  claim  appears  to  have  been  regarded 
by  Attorney-General  Harmon,  in  1895,  as  unopposed  by  any 
accepted  rule  of  international  law.^  He  maintained  that  such  con- 
duct was  incidental  to  the  exercise  of  rights  of  sovereignty  by  a 
State  within  its  own  domain,  and  hence  unrestricted  by  any 
limitation  not  self-imposed.^ 

It  may  be  that  in  the  particular  case,  the  equities  of  the  up- 
stream State  resorting  to  diversion  within  its  own  domain  are, 
apart  from  those  derived  from  the  theory  of  unrestricted  sover- 
eignty, as  solid  as  the  claims  of  a  proprietor  downstream,  and 
notably  when  the  use  of  the  water  taken  for  purposes  of  irrigation, 
changes  the  form  without  lessening  the  extent  of  the  benefit  of 
the  river  to  the  latter,  in  spite  of  the  diminished  flow  of  water 
through  the  customary  channel.^     In  such  case  there  is  merely  a 

^  21  Ops.  Attys.-Gen..  274,  where  the  opinion  was  expressed  that  Art.  VII 
of  the  Treaty  of  Guadalupe-Hidalgo  of  Feb.  2, 1848,  did  not  purport  to  restrict 
the  taking  of  water  for  purposes  of  irrigation  from  the  Rio  Grande  where  the 
river  lay  whollj^  within  the  United  States.     See,  also,  Moore,  Dig.,  I,  653-654. 

2  In  the  course  of  his  opinion  Mr.  Harmon  said:  "It  is  not  suggested  that 
the  injuries  complained  of  are  or  have  been  in  any  measure  due  to  wantonness 
or  wastefulness  in  the  use  of  water  or  to  any  design  or  intention  to  injure. 
The  water  is  simply  insufficient  to  supply  the  needs  of  the  great  stretch  of  arid 
country  through  which  the  river,  never  large  in  the  dry  season,  flows,  giving 
much  and  receiving  little."     21  Ops.  Attys.-Gen.,  283. 

^  In  1901,  the  State  of  Kansas  brought  an  original  suit  in  the  Supreme 
Court  of  the  United  States  to  restrain  the  State  of  Colorado  and  certain 
corporations  of  the  latter  State  from  diverting  the  waters  of  the  Arkansas 
River  for  irrigation  purposes  in  Colorado.  Kansas  v.  Colorado,  206  U.  S. 
46.  The  complainant  recognized  the  right  of  Colorado  to  use  the  waters  for 
its  domestic  purposes.  It  was  contended,  however,  that  the  diversion  not 
only  diminished  the  flow,  but  also  was  inequitable  in  that  it  threatened  the 
devastation  of  a  portion  of  Kansas.  Thus,  the  precise  inquiry  before  the  court 
was  whether  or  not  the  diversion  served  to  injure  the  substantial  interests 
of  the  complainant.  In  this  connection  the  court  said :  "But  we  are  justified 
in  looking  at  the  question  not  narrowly  and  solely  as  to  the  amount  of  the  flow 
in  the  channel  of  the  Arkansas  River,  inquiring  merely  whether  any  portion 
thereof  is  appropriated  by  Colorado,  but  we  may  properly  consider  what,  in 
case  a  portion  of  that  flow  is  appropriated  by  Colorado,  are  the  effects  of  such 
appropriation  upon  Kansas  territory.  For  instance,  if  there  be  many  thou- 
sands of  acres  in  Colorado  destitute  of  vegetation,  which  by  the  taking  of 
water  from  the  Arkansas  River  and  in  no  other  way  can  be  made  valuable 
as  arable  lands  producing  an  abundance  of  vegetable  growth,  and  this  trans- 
formation of  desert  land  has  the  effect,  through  percolation  of  water  in  the 
soil,  or  in  any  other  way,  of  giving  to  Kansas  territory,  although  not  in  the 
Arkansas  Valley,  a  benefit  from  water  as  great  as  that  which  would  enure  by 
keeping  the  flow  of  the  Arkansas  in  its  channel  undiminished,  then  we  may 
rightfully  regard  the  usefulness  to  Colorado  as  justifying  its  action,  although 
the  locality  of  the  benefit  of  the  flow  of  the  Arkansas  through  Kansas  has 
territoriaUy  changed."  Id.,  100-101.  The  court  concluded  that  as  the  great 
body  of  the  Arkansas  Valley  in  Kansas  had  suffered  no  perceptible  injury, 
the  complainant  was  not  entitled  to  the  relief  sought. 

314 


THE  PRINCIPLES  INVOLVED  [§  183 

measuring  of  the  value  of  conflicting  claims  of  opposing  States 
according  to  the  effect  upon  each  of  the  act  of  diversion.  The 
situation,  may,  however,  be  otherwise,  and  point  to  no  actual  ad- 
vantage derived  from  diversion  which  is  comparable  in  degree  to 
the  damage  inflicted  upon  another  riparian  State.  Whether  in 
such  case  the  continued  taking  of  water,  regardless  of  the  obvious 
result  of  so  doing,  amounts  to  an  abuse  of  power,  may  still  be  in 
fact  regarded  as  a  mooted  question.  The  solution  of  it  must  de- 
pend upon  the  view  which  is  entertained  as  to  the  nature  and  ex- 
tent of  the  freedom  from  external  control  which  a  State  retains 
with  respect  to  occurrences  within  its  own  domain.  The  United 
States  appears  to  be  reluctant  to  admit  that  tlie  territorial  sov- 
ereign is  legally  subject  to  restraint  which  it  has  not  itself  under- 
taken by  treaty  to  observe.^ 

In  the  case  of  a  navigable  river  a  special  element  projects  itself 
which  at  once  opposes  any  unrestricted  taking  of  water  serving 
to  diminish  the  depth  of  channels  of  navigation  and  thus  to  im- 
pair their  value. ^  Any  duty  imposed  upon  a  riparian  State, 
either  by  international  law  or  by  contract,  to  maintain  the  naviga- 
bility of  an  international  river,  implies  an  obligation  also  to  check 
within  places  subject  to  the  control  of  such  State  the  commission 
of  any  acts  which,  unless  restricted,  would  prove  injurious  to  navi- 
gation generally.  This  obligation  would  seem  to  render  improper 
the  tolerance  of  any  diversion  productive  of  such  an  effect  even 
though  it  should  occur  at  a  point  where  the  river  ceased  to  be 
navigable  and  lay  wholly  within  the  domain  of  the  acquiescent 

1  Elliott,  J.,  in  the  course  of  the  opinion  of  the  court,  in  the  case  of  Minne- 
sota Canal  &  Power  Co.  v.  Pratt,  101  Minn.  197,  230,  where  the  learned  judge 
quoted  a  despatch  of  Mr.  Root,  Secy,  of  State,  of  Dec.  19,  1905. 

In  the  resolutions  adopted  by  the  Institute  of  International  Law  at 
Madrid,  in  1911,  respecting  the  International  Regulation  of  the  Use  of  Inter- 
national Streams,  it  was  declared  that  "International  law  having  already 
considered  the  right  of  navigation  on  international  rivers,  the  utilization  of 
the  water  for  manufacturing,  agriculture,  etc.,  has  failed  to  contemplate  all 
that  this  right  entails."  Annuaire,  XXlV,  365,  366,  J.  B.  Scott,  Resolutions, 
168,  169.  In  the  rules  adopted,  the  Institute,  while  giving  heed  to  obligations 
to  respect  rights  of  navigation,  did  not  see  fit  to  lay  down  any  broad  distinction 
between  the  obligations  arising  with  respect  to  a  navigable  river,  and  those 
arising  where  a  stream  was  not  navigable.  See,  also,  Oppenheim,  2  ed.,  I, 
§  178a. 

2  See,  for  example,  problem  discussed  in  Brief  of  Daniel  Mullin  in  behalf 
of  the  Canadian  Government  opposing  the  application  of  the  Sanitary  District 
of  Chicago  to  the  Secretary  of  War,  for  a  permit  to  divert  not  more  than 
10,000  cubic  feet  per  second  of  water  of  Lake  Michigan  through  the  Drainage 
Canal  at  Chicago.  Department  of  Marine  and  Fisheries,  Canada,  Papers 
Relating  to  the  Application  of  the  Sanitary  District  of  Chicago,  Ottawa,  1912, 
36-72.  This  brief  is  here  noted  merely  as  illustrating  the  nature  of  the  problem 
discussed  in  it,  and  without  intimating  approval  or  disapproval  of  the  con- 
clusions expressed  therein. 

315 


§  183]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

territorial  sovereign.^  The  circumstance,  however,  that  regulated 
diversions  can  be  effected  without  serious  interference  with  navi- 
gability, and  that  the  value  of  them  is  oftentimes  inestimable  has 
made  necessary  the  conclusion  of  conventions  fixing  the  rights  and 
duties  of  riparian  States.  The  United  States  has  acted  upon  such 
a  theory. 

(b) 

§  184.  Certain  Contractual  Arrangements  of  the  United 
States. 
The  United  States  has  in  the  present  century  concluded  signif- 
icant agreements  v/ith  Mexico,  in  relation  to  the  Rio  Grande,^  and 
with  Great  Britain,  with  respect  to  waters  forming  the  Canadian 
boundary.^  Certain  provisions  of  the  latter  deserve  attention. 
Each  contracting  party  reserved  to  itself  "the  exclusive  juris- 
diction and  control  over  the  use  and  diversion,  whether  temporary 
or  permanent,  of  all  waters  on  its  own  side  of  the  line  which  in 
their  natural  channels  would  flow  across  the  boundary  or  into 

1  See  the  reasoning  of  the  Supreme  Court  of  the  United  States  in  interpreting 
the  Act  of  Congress  of  Sept.  19,  1890,  26  Stat.  454,  §  10,  forbidding  interfer- 
ence with  the  navigabiUty  of  a  stream  without  the  assent  of  the  National 
Government,  in  the  case  of  United  States  v.  Rio  Grande  Dam  &  Irrigation  Co., 
174  U.  S.  690,  700,  707-710.  See,  also.  Art.  II  of  convention  between  the 
United  States  and  Great  Britain  of  Jan.  11,  1909,  concerning  the  boundary 
waters  between  the  United  States  and  Canada,  Charles'  Treaties,  40. 

2  See  convention  providing  for  the  equitable  distribution  of  the  waters  of 
the  Rio  Grande  for  irrigation  purposes,  May  21,  1906,  Malloy's  Treaties,  I, 
1202.  The  convention  made  arrangement  for  the  delivery  to  Mexico  of  a 
specified  volume  of  water  annually,  in  the  bed  of  the  Rio  Grande  at  the  point 
where  the  head  works  of  the  Old  Mexican  Canal  existed  above  the  city  of 
Juarez,  Mexico.  Art.  I.  According  to  Art.  IV  the  delivery  of  water  was  not 
to  be  construed  as  a  recognition  by  the  United  States  of  any  claim  on  the  part 
of  Mexico  to  the  waters  specified ;  and  in  consideration  of  such  dehvery, 
Mexico  waived  any  and  all  claims  to  the  waters  of  the  Rio  Grande  for  any 
purpose  whatever  between  the  head  of  the  existing  Mexican  Canal  and  Fort 
Quitman,  Texas,  and  declared  to  be  fully  settled  and  disposed  of,  and  also 
thereby  waived  all  claims  previously  asserted  or  existing,  or  that  might  there- 
after arise  or  be  asserted  against  the  United  States  on  account  of  any  damages 
alleged  to  have  been  sustained  by  the  owners  of  land  in  Mexico,  by  reason  of 
the  diversion  by  citizens  of  the  United  States  of  the  waters  of  the  Rio  Grande. 
In  Art.  V  it  was  declared  that  the  United  States,  in  entering  upon  the  treaty, 
did  not  thereby  concede,  expressly  or  by  implication,  any  legal  basis  for  any 
claims  previously  asserted  or  which  might  thereafter  be  asserted  by  reason  of 
any  losses  incurred  by  owners  of  land  in  Mexico  due  or  alleged  to  be  due  to 
the  diversion  of  the  Rio  Grande  within  the  United  States.  It  was  also  de- 
clared that  the  United  States  did  not  in  any  way  concede  the  establishment  of 
any  general  principle  or  precedent  by  the  concluding  of  the  treaty.  The 
understanding  of  both  parties  was  said  to  limit  the  arrangement  contemplated 
by  the  treaty  to  the  portion  of  the  Rio  Grande  forming  the  international 
boundary  from  the  head  of  the  Mexican  Canal  down  to  Fort  Quitman,  Texas. 

'  See  convention  concerning  the  boundary  waters  between  the  United 
States  and  Canada,  Jan.  11,  1909,  Charles'  Treaties,  39.  In  this  connection, 
see  editorial  comment,  Am.  J.,  TV*  668. 

316 


THE  INTERNATIONAL  JOINT  COMMISSION       [§  184 

boundary  waters."  ^  It  was  agreed,  however,  that  any  interfer- 
ence or  diversion  on  either  side  of  the  boundary,  resulting  in  in- 
jury on  the  other  side  thereof,  should  give  rise  to  the  same  rights 
and  entitle  the  injured  parties  to  the  same  legal  remedies  as  if  such 
injury  took  place  in  the  country  where  the  diversion  or  interfer- 
ence occurred.^  No  further  uses  or  obstructions  or  diversions  (in 
addition  to  those  previously  permitted  or  thereafter  to  be  pro- 
vided for  by  special  agreement)  affecting  the  natural  level  or  flow 
of  boundary  waters,  were  to  be  made  except  by  authority  of  the 
United  States  or  Canada  "within  their  respective  jurisdictions" 
and  with  the  approval  of  a  joint  commission  known  as  the 
International  Joint  Commission  established  by  the  convention.^ 
Save  with  the  approval  of  the  Commission  the  construction  or 
maintenance  of  no  remedial  or  protective  works  or  any  dams 
or  obstructions  were  to  be  permitted  by  either  contracting 
party  on  its  own  side,  if  the  effect  thereof  would  be  to  raise  the 
natural  level  of  waters  on  the  other  side  of  the  boundary.'*  It 
was  declared  to  be  expedient  to  limit  the  diversion  of  waters  from 
the  Niagara  River  so  that  the  level  of  Lake  Erie  and  the  flow  of 
the  stream  should  not  be  appreciably  affected.^  The  amount  to 
be  diverted  from  that  river  within  the  State  of  New  York  above 
the  Falls  of  Niagara  "for  power  purposes"  was  expressly  limited, 
and  also  the  amount  to  be  taken  for  like  purposes  above  those  falls 
within  the  Province  of  Ontario.® 

1  Art.  II,  Charles'  Treaties,  40. 

2  In  this  connection  it  was  stated  that  "neither  of  the  High  Contracting 
Parties  intends  by  the  foregoing  provision  to  surrender  any  right,  which  it 
may  have,  to  object  to  any  interference  with  or  diversions  of  waters  on  the 
other  side  of  the  boundary  the  effect  of  which  would  be  productive  of  material 
injury  to  the  navigation  interests  on  its  own  side  of  the  boundary." 

'  Art.  III.  It  was  declared  in  this  connection  that  these  provisions  were 
not  intended  to  Umit  or  interfere  with  the  existing  rights  of  the  United  States, 
on  the  one  side,  and  Canada,  on  the  other,  to  undertake  and  carry  on  govern- 
mental works  in  boundary  waters  for  the  deepening  of  channels,  the  construc- 
tion of  breakwaters,  the  improvement  of  harbors,  and  others  for  the  benefit 
of  commerce  and  navigation,  provided  such  works  were  wholly  on  its  own  side 
of  the  line  and  did  not  materially  affect  the  level  or  flow  of  the  boundary 
waters  on  the  other.  Nor  were  such  provisions  "intended  to  interfere  with 
the  ordinary  use  of  such  waters  for  domestic  and  sanitary  purposes." 

*  Art.  IV.  An  exception  was  made,  however,  with  respect  to  cases  provided 
for  by  special  agreement  between  the  contracting  parties.  This  Article  em- 
braced the  further  agreement  that  the  waters  defined  as  boimdary  waters,  as 
well  as  waters  flowing  across  the  boundary,  should  not  be  polluted  on  either 
side  to  the  injury  of  health  or  property  on  the  other. 

*  Art.  V.  It  was  said  to  be  the  desire  of  both  parties  to  accomplish  this 
object  with  the  least  possible  injury  to  investments  already  made  in  the  con- 
struction of  power  plants  on  both  sides  of  the  river. 

«  Art.  V.  It  should  be  noted  that  the  provisions  of  this  Article  were  not  to 
apply  to  the  diversion  of  water  for  sanitary  or  domestic  purposes,  or  for  the 
service  of  canals  for  purposes  of  navigation.     In  Art.  VI  arrangement  was 

317 


§  184]     GENERAL   RIGHTS   OF   PROPERTY    AND    CONTROL 

To  the  International  Joint  Commission  to  be  composed  of  six 
commissioners  (three  to  be  appointed  in  behalf  of  each  party)  ^ 
was  given  broad  jurisdiction  in  cases  involving  the  use  or  obstruc- 
tion or  diversion  of  waters.  The  following  rules  or  principles  were 
adopted  for  its  guidance.  P]ach  party  was  to  have  on  its  own  side 
of  the  boundary  similar  and  equal  rights  in  the  boundary  waters. 
The  following  order  of  precedence  was  to  be  observed  among  the 
various  uses  enumerated,  and  no  use  was  to  be  permitted  which 
might  tend  materially  to  conflict  with  or  restrain  any  other  use 
given  preference  over  it  in  that  order :  (a)  uses  for  domestic  and 
sanitary  purposes ;  (b)  uses  for  navigation,  including  the  service 
of  canals  for  the  purposes  of  navigation ;  (c)  uses  for  power  and 
for  irrigation  purposes.^  Discretion  was  given  the  Commission 
to  make  its  approval  in  any  case  conditional  upon  the  construction 
of  appropriate  remedial  or  protective  works  in  compensation  for 
a  particular  use  or  proposed  diversion.  A  majority  of  the  com- 
missioners was  to  have  power  to  render  a  decision.^ 

made  for  the  equal  apportionment  between  the  two  countries  for  purposes  of 
irrigation  and  power,  of  the  waters  of  the  St.  Mary  and  Milk  rivers  and  their 
tributaries  (in  the  State  of  Montana  and  the  Provinces  of  Alberta  and  Sas- 
katchewan) . 

It  should  be  noted  that  by  the  resolution  through  which  the  Senate  advised 
and  consented  to  ratification  of  the  convention,  constitutional  approval  of 
the  treaty  was  given  with  the  understanding  that  nothing  in  it  should  be 
construed  "as  affecting,  or  changing,  any  existing  territorial  or  riparian  rights 
in  the  water,  or  rights  of  the  owners  of  lands  under  water,  on  either  side  of  the 
international  boundary  at  the  rapids  of  the  St.  Mary's  River  at  Sault  Ste. 
Marie,  in  the  use  of  the  waters  flowing  over  such  lands,  subject  to  the  require- 
ments of  navigation  in  boundary  waters  and  of  navigation  canals,  and  without 
prejudice  to  the  existing  right  of  the  United  States  and  Canada,  each  to  use 
the  waters  of  the  St.  Mary's  River,  within  its  own  territory,  and  further,  that 
nothing  in  this  treaty  shall  be  construed  to  interfere  with  the  drainage  of  wet 
swamp  and  overflowed  lands  into  streams  flowing  into  boundary  waters,  and 
that  this  interpretation  will  be  mentioned  in  the  ratification  of  this  treaty  as 
conveying  the  true  meaning  of  the  treaty,  and  will,  in  effect,  form  part  of  the 
treaty."     Charles'  Treaties,  46. 

1  Art.  VII. 

^  Art.  VIII.  It  was  declared  that  the  foregoing  provisions  should  not 
apply  to  or  disturb  any  existing  uses  of  boundary  waters  on  either  side  of  the 
boundary.  It  was  agreed  that  in  cases  involving  the  elevation  of  the  natural 
level  of  waters  on  either  side  of  the  line  as  a  result  of  the  construction  or  main- 
tenance on  the  other  side  of  remedial  or  protective  works  or  dams  or  other 
obstructions,  the  Commission  should  require,  as  a  condition  of  its  approval 
thereof,  that  suitable  and  adequate  provision,  approved  by  it,  be  made  for 
the  protection  and  indemnity  of  all  interests  on  the  other  side  of  the  line  which 
might  be  injured  thereby. 

'  In  the  case  of  an  equal  division  of  opinion,  separate  reports  were  to  be 
made  by  the  commissioners  on  each  side  to  their  own  Government.  In  such 
event  the  contracting  parties  were  to  endeavor  to  agree  upon  an  adjustment. 

It  was  agreed  also,  in  Art.  IX,  that  any  other  questions  or  matters  of  differ- 
ence arising  between  the  contracting  parties,  and  involving  the  rights,  obliga- 
tions or  interests  of  either  in  relation  to  the  other  or  to  the  inhabitants  of  the 
other  along  the  common  frontier  between  the  United  States  and  Canada, 

318 


BAYS  [§  185 

The  International  Joint  Commission  which  was  duly  established, 
fulfilled  with  success  its  function  with  respect  to  problems  of  di- 
version referred  to  it.^ 

The  terms  of  the  convention  gave  proof  that  both  the  Ignited 
States  and  Canada  perceived  that  the  diversion  of  waters  on  either 
side  of  the  boundary  was  a  matter  of  common  interest,  requiring 
regulation  through  a  common  agency,  and  that  in  spite  of  reserva- 
tions in  favor  of  each  territorial  sovereign,  there  was  a  distinct 
mutual  advantage  derivable  from  a  reciprocal  arrangement  in 
restraint  of  acts  serving  to  impede  navigation  by  lowering  the 
natural  level  of  the  boundary  waters. 

(6) 
§  185.   Bays. 

Over  all  bays  within  its  territory  a  State  may  exercise  exclusive 
control.^  As  such  waters  do  not  form  channels  of  communica- 
tion between  open  seas,  foreign  powers  possess  no  rights  of  navi- 
gation therein  save  as  incidental  to  the  privilege  of  access  to  local 
ports,  and  except  for  purposes  of  refuge  for  vessels  in  distress.^ 

should  be  referred  from  time  to  time  to  the  Commission  for  examination  and 
report,  whenever  either  the  Government  of  the  United  States  or  that  of  the 
Dominion  should  so  request.  In  the  event  of  a  reference,  the  Commission 
was,  after  making  the  requisite  examination,  to  make  its  reports  with  con- 
clusions and  recommendations  (subject  to  special  restrictions  imposed  by  the 
terms  of  reference).  Such  reports  were  not  to  be  regarded  as  decisions  or  to 
possess  the  character  of  arbitral  awards.  The  Commission  was  to  make  a 
joint  report  to  both  Governments  in  cases  where  a  majority  agreed.  Pro- 
vision for  minority  reports  was  made.  In  the  event  of  an  even  division 
separate  reports  were  to  be  made  by  the  commissioners  on  each  side  to  their 
own  Government. 

By  Art.  X  it  was  agreed  that  "any  questions  or  matters  of  difference  arising 
between  the  High  Contracting  Parties  involving  the  rights,  obligations,  or 
ftiterests  ot  the  United  States  or  of  the  Dominion  of  Canada,  either  in  relation 
to  each  other  or  to  their  respective  inhabitants",  might  be  referred  for  decision 
to  the  Commission  by  the  consent  of  those  parties.  Provision  was  made  for 
the  scope  of  the  authority  and  functions  of  the  Commission  in  cases  so  referred 
to  it.  The  power  of  a  majority  to  render  a  decision  was  acknowledged.  In 
case  of  an  equal  division  of  opinion,  or  of  inability  of  the  Commission  to  render 
a  decision  or  finding,  the  parties  agreed  to  have  recourse  to  arbitration. 

1  As  illustrative  of  its  work,  see  International  Joint  Commission,  Application 
of  the  Government  of  the  United  States  for  Approval  of  Certain  Contemplated 
Improvements  in  the  St.  Clair  River  at  Port  Huron,  Mich.,  Order  and  Opinion, 
Washington,  1917 ;  International  Joint  Commission,  Application  of  the  St. 
Lawrence  River  Power  Company,  Interim  Order  and  Opinion,  Ottawa,  1918. 

As  illustrative  of  its  work  as  referee  of  questions  submitted  to  it  by  the 
Governments  of  the  United  States  and  of  the  Dominion  of  Canada,  under  the 
provisions  of  Art.  IX  of  the  treaty,  see  Final  Report  of  the  International 
Joint  Commission  on  the  Lake  of  the  ^\■oo(ls  Reference,  Washington,  1917. 

^  A.  H.  Charteris,  "Territorial  Jurisdiction  in  Wide  Bays",  Int.  Law  As- 
sociation, Proceedings,  23d  Conference,  Berlin,  1906,  103,  107. 

5  Art.  I  of  the  treaty  between  the  United  States  and  Great  Britain  of 
Oct.  20,  1818,  prohibiting  American  fishermen  from  enjoying  fishing  privileges 

319 


§  185]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

Such  access  is,  however,  commonly  accorded  foreign  vessels  of 
commerce.  The  use  of  bays  by  foreign  vessels  of  war  is  regarded 
as  dependent  upon  the  consent  of  the  territorial  sovereign.^  That 
consent  is  doubtless  to  be  presumed  in  seasons  of  peace,  at  least 
when  such  use  is  sought  for  the  purpose  of  enabling  such  ships 
to  enter  a  local  port.^  No  rule  of  law  serves  to  prevent  the  terri- 
torial sovereign  from  closing  at  will  particular  bays.  Their  use 
for  its  own  distinctive  military  purposes  may  impel  it  to  take  such 
a  step,  likewise  special  considerations  pertaining  to  the  safety  of 
the  State,  or  the  interest  of  the  public  health. 

Within  bays,  as  elsewhere  within  its  waters,  the  fisheries  are 
subject  to  the  exclusive  control  of  the  territorial  sovereign. 

(7) 

§  186.  Lakes  and  Enclosed  Seas. 

A  lake  or  land-locked  sea  which  forms  a  part  of  the  domain  of 
a  single  State  is  subject  to  its  exclusive  control.  Although,  like 
Lake  Michigan,  it  connects  with  and  constitutes  a  part  of  a  system 
of  water  communications  forming  an  international  boundary  and 
emptying  into  the  ocean,  no  right  of  navigation  is  possessed  by 
any  foreign  State.  It  has  been  observed  that  by  virtue  of  the 
Canadian  boundary  convention  of  January  11,  1909,  rights  of 
navigation  in  that  lake  were  extended  to  the  inhabitants  and  ves- 
sels of  Canada.^ 

Where  a  lake  forms  a  part  of  the  territorial  waters  of  two  or 
more  States,  a  common  right  of  navigation  is  enjoyed  by  the  several 
proprietors.  Thus,  Lakes  Ontario,  Erie,  Huron  and  Superior, 
and  their  water  communicatiohs,  are  treated  as  "international 
waters,  being  dedicated  in  perpetuity  to  the  common  navigation 
of  all  the  inhabitants"  of  the  countries  on  both  sides  of  the  bound- 
within  certain  British  bays,  provided,  however,  that  such  fishermen  might 
enter  such  bays  for  the  purpose  of  shelter  and  of  repairing  damages  therein, 
of  purchasing  wood  and  of  obtaining  water.     See  Malloy's  Treaties,  I,  631-632. 

1  See  reciprocal  agreement  relative  to  the  stationing  of  coaUng  vessels  in 
the  waters  of  Mexico  (Magdalena  Bay)  and  the  United  States,  as  set  forth  in 
correspondence  in  For.  Rel.  1907,  II,  845-846.     Also,  Rev.  Gen.,  XV,  436-439. 

See  Preliminary  Provisions  of^  Regulations  Concerning  the  Legal  Status  of 
Ships  and  Their  Crews  in  Foreign  Ports,  adopted  by  the  Institute  of  Inter- 
national Law  in  1898,  Annuaire,  XVII,  273,  J.  B.  Scott,  Resolutions,  144. 

2  Access  to  Ports,  infra,  §  187 ;  also  Naval  War  College,  Int.  Law  Topics, 
1914,  35-67. 

'  Charles'  Treaties,  40 ;  The  Navigation  of  Rivers,  The  St.  Lawrence, 
supra,  §  162. 

See  provisions  of  Art.  IV  of  treaty  of  June  5,  1854,  Malloy's  Treaties,  I, 
671 ;  Art.  XXVIII  of  the  treaty  of  May  8,  1871  (which  was  subsequently 
terminated),  id.,  711 ;  also  documents  in  Moore,  Dig.,  I,  670-691. 

320 


ACCESS  TO  PORTS  [§  187 

ary.^  Such  a  right  of  navigation  is  not  enjoyed  by  States  other 
than  those  to  which  the  waters  may  be  said  to  belong.  Moreover, 
the  bordering  States  possess  the  exclusive  right  to  control  and 
utilize  the  fisheries  within  their  respective  territorial  waters.^ 

(8) 
§  187.   Access  to  Ports. 

As  no  civilized  States  appears  to  be  regarded  as  having  the  right 
to  isolate  itself  wholly  from  the  outside  world  or  to  remain  aloof 
from  all  commercial  or  economic  intercourse  with  it,  there  would 
seem  to  be  a  corresponding  obligation  imposed  upon  each  maritime 
power  not  to  deprive  foreign  vessels  of  commerce  of  access  to  all 
of  its  ports.^  The  territorial  sovereign  possesses,  nevertheless, 
the  broadest  right  to  determine  which  of  them  shall  be  open  to 
commerce,  as  well  as  to  regulate  access  thereto.^     In  the  absence 

1  See  statement  in  Moore,  Dig.,  I,  675,  where  it  is  added:  "It  may  be 
superfluous  to  remark  that  this  common  right  of  navigation  does  not  embrace 
the  respective  coasting  trade  of  the  contracting  parties,  a  limited  participation 
in  which  was  reciprocally  conceded  by  Article  XXX  of  the  Treaty  of  Washing- 
ton of  May  8,  1871." 

2  Mr.  Uhl,  Acting  Secy,  of  State,  to  Messrs.  Laughlin,  Ewell  and  Houpt, 
May  23,  1894,  197  MS.  Dom.  Let.  118,  Moore,  Dig.,  I,  672,  674  ;  Mr.  Gresham, 
Secy,  of  State,  to  Mr.  Hooker,  Jan.  2,  1895,  200  Dom.  Let.  121,  Moore,  Dig., 

I,  675,  note;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Chipman,  M.  C,  Feb.  2, 
1889,  17  MS.  Report  Book,  327,  Moore,  Dig.,  I,  675,  note. 

Limitation  of  Naval  Force  on  the  Great  Lakes  :  By  an  exchange  of 
notes  April  28  and  29,  1817,  an  agreement  was  concluded  between  the  United 
States  and  Great  Britain  limiting  the  naval  force  of  each  Government  on  the 
Great  Lakes  to  one  vessel  on  Laice  Ontario,  to  two  on  the  upper  Lakes,  and  to 
one  on  Lake  Champlain,  each  vessel  not  to  exceed  in  burden  100  tons,  and  in 
armament  one  18-pound  cannon.  All  other  armed  vessels  were  to  be  "forth- 
with dismantled"  and  no  other  vessels  of  war  were  to  be  "there  built  or 
armed."  The  arrangement  was  to  be  terminable  on  six  months'  notice. 
Am.  State  Pap.,  For.  Rel.,  IV,  205-206,  Moore,  Dig.,  I,  692.  Concerning 
the  negotiation  of  this  agreement  and  its  subsequent  interpretation  by  the 
high  contracting  parties,  see  statement  in  Moore,  Dig.,  I,  692-698,  and  docu- 
ments there  cited,  particularly  the  report  of  Mr.  John  W.  Foster,  Secy,  of 
State,  to  the  President,  Dec.  7,  1892,  Sen.  Ex.  Doc.  No.  9,  52  Cong.,  2  Sess. 
This  report  was  published  by  the  Carnegie  Endowment  for  International  Peace, 
Division  of  International  Law,  as  Pamphlet  No.  2,  Washington,  1914. 

3  "The  government  of  the  United  States  had,  in  1852,  the  right  to  insist 
upon  Japan  entering  upon  such  treaty  relations  as  woidd  protect  travellers 
and  sailors  from  the  United  States  visiting  or  cast  ashore  on  that  island  from 
spoliation  or  maltreatment,  and  also  to  procure  entrance  of  LTnited  States 
vessels  into  Japanese  ports."  Moore,  Dig.,  V,  740,  citing  Mr.  Conrad,  Asst. 
Secy,  of  State,  to  Mr.  Kennedy,  Nov.  5,  1852,  MS.  Notes,  Special  Missions, 
III,  1.  Concerning  Commodore  Perry's  successful  mission  to  Japan,  id.,  V, 
736-740. 

*  Mr.  Monroe,  Secy,  of  State,  to  the  Chevalier  de  Onis,  Spanish  Minister, 
Jan.  19,  1816,  Am.  State  Pap.,  For.  Rel.,  IV,  424,  426,  Moore,  Dig.,  II,  269; 
Mr.  Conrad,  Acting  Secy,  of  State,  to  Mr.  Barringei.  Oct.  28,  1852,  MS.  Inst. 
Spain,  XIV,  369;  Moore,  Dig.,  II,  269,  Mr.  Blaine,  Secy,  of  State,  to  Mr. 
Douglass,  Minister  to  Haiti,  July  2,  1890,  For.  Rel.  1890,  530,  Moore,  Dig., 

II,  270. 

VOL.  I.  — 11  321 


§  187]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

of  special  agreement,  no  foreign  State  is  entitled  to  claim  for  its 
merchant  vessels  a  right  of  entrance,  with  respect  to  a  particular 
port,  analogous  to  that  which  might  reasonably  be  asserted  in 
relation  to  navigation  along  the  marginal  seas,  or  through  a  strait.^ 
A  State  may  not  unlawfully  close  its  ports,  even  in  times  of  peace, 
to  foreign  vessels  of  war  or  other  foreign  public  ships. ^  Accord- 
ing to  American  opinion,  it  is  generally  understood,  however,  that 
in  the  absence  of  evidence  of  some  prohibition,  ports  which  are 
open  to  foreign  vessels  of  commerce  are  not  closed  to  those  of 
war.^  A  State  whose  public  vessels  are  about  to  visit  the  ports 
of  a  foreign  Power,  commonly,  however,  makes  previous  announce- 
ment of  the  fact  to  the  Government  of  the  latter,  especially  if  several 
vessels  are  concerned,  in  order  that  steps  suitable  for  their  protec- 
tion and  reception  may  be  duly  taken. ^  The  Naval  War  College 
has  concluded  that  not  more  than  three  foreign  vessels  of  war 

^  See  "Regulations  Governing  the  Visits  of  Men-of-War  to  Foreign  Ports", 
issued  by  Office  of  Naval  Intelligence,  Navy  Department,  September,  1913 ; 
corrected  to  June  10,  1916,  Am.  J.,  X,  Supp.,  121. 

-  Illustrative  of  the  exercise  of  this  right  to  withdraw  or  limit  the  license  to 
foreign  vessels  of  war  to  enter  the  ports  of  a  State,  Professor  Moore  calls  atten- 
tion to  the  Act  of  Congress  of  May  15,  1820,  "by  which  foreign  armed  vessels 
were  for  a  period  of* two  years,  beginning  July  1,  1820,  forbidden  to  enter  any 
harbor  in  the  United  States  except  Portland,  Boston,  New  London,  New 
York,  Philadelphia,  Norfolk,  Smithville  (N.  C),  Charleston,  and  Mobile, 
unless  by  reason  of-  stress  of  weather  or  pursuit  of  an  enemy  they  were  unable 
to  make  one  of  those  ports."  Dig.,  II,  564;  3  Stat.  597.  See,  also,  2  Stat. 
339,  342;  also  Rev.  Stat.,  §  2791. 

See  correspondence  between  the  United  States  and  Venezuela  in  1901, 
relative  to  objections  by  the  latter  to  the  presence  of  the  U.  S.  S.  Scorpion 
in  the  harbor  of  Santa  Catalina,  a  port  that  was  not  open  to  commerce.  In 
this  connection  Mr..  Hay,  Secy,  of  State,  called  the  attention  of  the  American 
Minister,  Mr.  Loomis,  to  a  letter  from  Mr.  Long,  Secy,  of  the  Navy,  pointing 
out  a  distinction  between  the  ordinary  visit  of  a  man-of-war,  and  a  visit  for 
"scientific  purposes."  Mr.  Long  declared  that  the  Naw  Department  would 
not  order  a  vessel  to  the  port  of  a  recognized  government  to  conduct  surveys 
or  make  topographical  examinations  without  ha\'ing  obtained  explicit  per- 
mission therefor ;  that  on  the  other  hand,  the  Department  would  neither  send 
notice  nor  request  permission  if  the  visit  were  not  undertaken  for  such  purpose, 
unless  the  waters  "were  expressly  denied  to  passage  of  men-of-war  by  national 
decree,  as  in  the  case  of  the  Amazon."  For.  Rel.  1901,  541-546,  Moore, 
Dig.,  IL  565-570.  Concerning  the  visit  of  the  U.  S.  S.  Mayflower  to  the 
Venezuelan  island  of  Margarita,  see  For.  Rel.  1901,  547-550. 

3  Declared  Chief  Justice  ]Marshall  in  the  course  of  his  opinion  in  The 
Schooner  Exchange  v.  McFaddon :  "If  there  be  no  prohibition,  the  ports 
of  a  friendly  nation  are  considered  as  open  to  the  public  ships  of  all  powers 
with  whom  it  is  at  peace,  and  they  are  supposed  to  enter  such  ports  and  to 
remain  in  them,  while  allowed  to  remain,  under  the  protection  of  the  govern- 
ment of  the  place.     7  Cranch,  116,  141 ;  see,  also,  Dana's  Wheaton,  160, 162. 

•>  See  correspondence  in  1895,  between  the  United  States  and  Turkey, 
relative  to  the  proposed  visit  of  an  American  squadron  to  certain  Ottoman 
ports,  For.  Rel.  1895,  II,  1250-1251 ;  correspondence  in  1905,  relative  to  the 
proposed  visits  of  the  second  British  cruiser  squadron  under  command  of 
Prince  Louis  of  Battenberg  to  certain  ports  of  the  L'nited  States,  For.  Rel. 
1905,  476-478 ;  correspondence  in  1904,  concerning  the  visit  of  an  American 
fleet  to  Austrian  ports,  For.  Rel.  1904,  44-47. 

322 


ACCESS  TO  PORTS  [§  187 

should  at  the  same  time  sojourn  in  any  naval  district  of  the  United 
States  without  specific  authorization,  and  that  the  sojourn  of 
foreign  vessels  of  war  in  American  waters  should  be  limited  to 
fifteen  days  unless  a  longer  period  is  specifically  authorized.  Such 
vessels  are  regarded  as  subject  to  local  regulations  respecting  an- 
chorage, and  also  to  others  (except  as  to  customs  inspection)  which 
American  war  vessels  are  obliged  to  respect.  The  former  are  deemed 
to  be  forbidden  to  take  soundings  (except  as  required  for  immediate 
safety  of  navigation),  to  use  submarine  or  air  craft,  or  to  engage 
in  target  or  similar  practice  therein,  although  it  is  said  that  such 
activities  may  be  specifically  authorized.^ 

While  public  foreign  ships,  for  reasons  later  discussed,  are  not 
subject  to  the  local  jurisdiction,  the  territorial  sovereign  may  not 
unlawfully,  if  in  its  judgment  occasion  so  requires,  demand  their 
departure  from  its  ports,  and,  if  need  be,  employ  reasonable  means 
to  accomplish  that  end.^ 

In  time  of  war,  according  to  the  Naval  War  College,  any  foreign 
vessel,  public  or  private,  is  regarded  as  entering  American  ports 
at  its  own  risk.  A  desire  to  enter  between  sunrise  and  sunset 
should,  it  is  said,  be  made  known  by  flying  the  national  flag  with 
a  signal  for  pilot,  the  vessel  remaining  outside  until  permission 
to  entdr  is  granted ;  and  entrance  during  the  night  is  prohibited. 
Vessels  availing  themselves  of  permission  to  enter  should  observe 
strictly  the  terms  imposed.  Vessels  entering  without  permission 
are  said  to  do  so  at  their  peril  and  to  subject  themselves  to  the 
use  of  such  force  as  American  authorities  may  deem  necessary  to 
direct  against  them."^ 

Shortly  before  the  United  States  became  a  belligerent  in  April, 
1917,  the  President,  in  accordance  with  statutory  authority,  es- 
tablished a  series  of  "defensive  sea  areas"  with  respect  to  specified 
ports,  harbors  and  roads,  comprising  the  principal  ones  under 
American  authority,  and  issued  appropriate  regulations  therefor.^ 

1  Naval  War  College,  Int.  Law  Topics,  1914,  35-67. 

It  may  be  noted  that  the  War  College  did  not  purport  to  limit  the  operation 
of  the  regulations  suggested  further  than  that  they  should  be  applicable  to 
the  waters  "  under  the  jurisdiction  of  the  United  States."  Thus  no  distinction 
was  made  between  ports  and  bays  or  other  territorial  waters. 

2  Act  of  June  1.5,  1917,  c.  30,  title  V,  §  10,  40  Stat.  223.  See,  also.  Naval 
War  College,  Int.  Law  Topics,  1914,  35,  where  it  was  declared  that  foreign 
vessels  of  war  might  be  fairly  required  to  leave  American  waters  within  si.x 
hours,  if  so  requested  by  the  authorities,  even  though  the  limit  of  time  of  their 
sojourn  had  not  expired.  Also  id.,  43,  with  respect  to  certain  foreign  regula- 
tions in  regard  to  departure. 

»  Naval  War  College,  Int.  Law  Topics,  1914,  436. 

*  Executive  Order  No.  2584,  April  5,  1917,  pursuant  to  an  Act  of  March  4, 
1909,  Section  44,  35  Stat.  1097,  as  amended  by  an  Act  of  March  4,  1917,  39 

323 


§  187]     GENERAL    RIGHTS    OP   PROPERTY   AND    CONTROL 

These  prescribed  the  methods  by  wliich  vessels  might  cross  a  de- 
fensive sea  area,  the  entrance  to  which  was  prohibited  save  after 
authorization  by  the  so-called  Harbor  Entrance  Patrol.  It  was 
declared  that  no  permission  would  be  granted  to  other  than  a  public 
vessel  of  the  United  States  to  cross  such  an  area  between  sunset 
and  sunrise,  nor  during  the  prevalence  of  weather  conditions  that 
rendered  navigation  difficult  or  dangerous.  It  was  announced 
that  a  vessel  arriving  off  such  an  area  after  sunset  should  anchor 
or  lie-to  at  a  distance  of  at  least  a  mile  outside  its  limits  until  the 
following  sunrise,  and  that  vessels  discovered  near  the  limits  of 
such  areas  at  night  might  be  fired  upon.^ 

(9) 
Air  Space  over  the  National  Domain 

(a) 
§  188.   In  General. 

The  various  opinions  as  to  the  nature  and  extent  of  the  right 
of  a  State  to  control  the  air  space  above  its  territory  were  put  to 
the  test  by  The  World  War.^     Events  of  that  conflict  served  to 

Stat.  1194.  Later  Executive  Orders,  Nos.  2597  and  2898  extended  the  scope 
of  defensive  sea  areas  to  additional  waters.  CJ.  Official  Bulletin,  May  11, 
1917,  p.  .3 ;  id.,  July  2,  1918,  p.  1. 

See,  also.  Executive  Order  establishing  defensive  sea  areas  for  Panama 
Canal  Terminal  Ports,  Aug.  27,  1917,  Official  Bulletin,  Sept.  5,  1917,  p.  8. 

1  §  806,  Chap.  463,  Act  of  Sept.  8,  1916,  authorizing  the  President  to  with- 
hold the  clearance  of  vessels  of  a  belligerent  country  refusing  to  accord  to 
American  ships  or  American  citizens  any  of  the  facilities  of  commerce  which 
such  vessels  or  citizens  of  that  belligerent  country  might  enjoy  in  the  United 
States  or  its  possessions,  or  in  case  American  ships  or  citizens  were  not  ac- 
corded by  such  belligerent  equal  privileges  or  facilities  of  trade  with  vessels 
or  citizens  of  any  nationality  other  than  that  of  such  belligerent,  until  that 
belligerent  should  restore  to  such  American  vessels  and  American  citizens 
reciprocal  Hberty  of  commerce  and  equal  facilities  of  trade. 

The  same  Act  gave  to  the  President  the  alternative  power  to  direct  that 
similar  privileges  and  facilities,  if  any,  enjoyed  by  vessels  or  citizens  of  such 
belligerent  in  the  United  States  or  its  possessions  be  refused  to  vessels  or  citi- 
zens of  such  belligerent. 

See,  also,  Title  II  of  the  so-called  Espionage  Act  of  June  15,  1917,  40  Stat. 
Part  I,  220. 

^  "On  this  point,  broadly  speaking,  there  are  two  main  schools  of  thought : 
1.  Those  who  maintain  that  the  air  space  is  of  its  nature  free;  this  theory 
being  that  of  the  freedom  of  the  air  space.  2.  Those  who  maintain  the  theory 
of  the  sovereignty  of  the  subjacent  State  in  the  air  space  above  its  territory. 

"The  first  school  may  again  be  subdivided  into  partisans  of : 

(a)  Air  freedom  without  restriction. 

(6)  Air  freedom  restricted  by  some  special  rights  (not  limited  as  regards 
height)  of  the  subjacent  State. 

(c)  Air  freedom  restricted  by  a  territorial  zone. 

"Those  who  maintain  the  sovereignty  theory  may  also  be  subdivided  into 
partisans  of : 

324 


IN  GENERAL  [§  188 

make  clear  the  significance  of  certain  factors  to  be  reckoned  with 
in  applying  theory  to  the  formulation  of  rules  for  general  guidance  ; 
first,  the  effect  of  the  operation  of  the  law  of  gravity  upon  all 
bodies  heavier  than  air  passing  over  the  subjacent  land  ;  secondly, 
the  indispensability  of  the  air  itself  to  the  inhabitants  of  the  earth, 
and  thirdly,  the  practical  importance  of  transportation  and  com- 
munication through  air  space  over  foreign  territory. 

It  has  been  perceived  that  the  relationship  which  the  air  space 

(a)  Full-sovereignty  without  any  restriction. 

(b)  Full  sovereignty  restricted  by  the  right  of  innocent  passage  for  aerial 
navigation. 

(c)  Full  sovereignty  up  to  a  limited  height  only. 

"The  various  parties  holding  these  separate  views  have  never  yet  come 
to  any  agreement  between  themselves."  Report  of  Committee  upon  Aviation, 
Int.  Law  Association,  Mr.  E.  S.  M.  Perowne,  reporter,  Proceedings,  28th  Con- 
ference, Madrid,  1913,  529,  530. 

For  bibliographies  of  the  extensive  literature  on  this  subject  see  Bonfils- 
Fauchille,  7  ed.,  360-362  ;  A.  S.  Hershey,  Int.  Law,  235,  note ;  J.  F.  Lycklama 
h  Nijeholt,  Air  Sovereignty,  Appendices,  The  Hague,  1910  ;  Harold  D.  Hazel- 
tine,  Law  of  the  Air,  London,  1911.  The  last  two  works  contain  a  discussion 
of  the  several  theories  advanced. 

Cf.,  also,  Enrico  Catellani,  Le  Droit  Aerien  (translated  from  the  Italian  by 
Maurice  Bouteloup),  Paris,  1912;  A.  E.  Denton,  "Law  Governing  Air  Space 
and  Aviation",  MS.  Thesis  for  Master's  Degree,  Northwestern  University, 
1916 ;  Paul  Fauchille,  Le  domaine  aerien  et  le  regime  juridique  des  aerostats, 
Paris,  1901 ;  Griinwald,  Das  Luftschiff  in  volkerrechtlicher  und  strafrechtlicher 
Beziehunci,  Hanover,  1908 ;  Leon  Lalande,  La  reglementation  de  la  circulation 
aerienne  Internationale  en  temps  de  paix,  Toulouse,  1913 ;  Sir  H.  Erie  Richards, 
Sovereignty  Over  the  Air,  Oxford,  1912. 

See,  also,  Simeon  E.  Baldwin,  "Law  of  the  Airship",  Am.  J.,  IV,  95; 
Blewett  Lee,  "Sovereignty  of  the  Air",  id.,  VII,  470;  A.  K.  Kuhn,  "Tht 
Beginnings  of  an  Aerial  Law",  id.,  IV,  109  ;  "Aerial  Navigation  in  its  Relation 
to  International  Law",  Am.  Pol.  Sc.  Assn.,  Proceedings,  1908,  83;  G.  G. 
Wilson,  "Aerial  .Jurisdiction",  Am.  Pol.  Sc.  Rev.,  V,  171 ;  J.  E.  G.  de  Mont- 
morency, "Air-Space  Above  Territorial  Waters",  Jour.  Comp.  Leg.,  N.  S., 
XVII,  Part  3,  p.  172  ;  G.  D.  Valentine,  "The  Air —  A  Realm  of  Law",  Jund. 
Rev.,  XXII,  16  and  85;  H.  D.  Hazeltine,  "Law  of  Civil  Aerial  Transport", 
Jour.  Comp.  Leg.,  3  ser.,  I,  Part  I,  76  ;  A.  Merignhac,  "Le  domaine  aerien  privi 
et  public,  et  les  droits  de  Vatiation  en  temps  de  paix  et  de  guerre".  Rev.  Gen., 
XXI,  205. 

Cf.  Proceedings  of  Institute  of  International  Law  in  Anmiaire,  XIX,  1^26 
(concerning  legal  status  of  aircraft)  ;  J.  B.  Scott,  Resolutions,  170-171 ; 
Annuaire,  XXI,  76-87  (Report  of  Paul  Fauchille  on  wireless  telegraphy) ; 
Annuaire,  XXIV,  23-104  (Report  of  Paul  Fauchille) ;  id.,  105-155,  embracing 
Paul  Fauchille's  Project  of  a  Convention  Respecting  Aerial  Law,  the  text  of 
which  is  contained  also  in  J.  B.  Scott,  Resolutions,  243-256  ;  and  L.  von  Bar's 
proposed  code  on  aircraft  in  war,  id.,  256,  Annuaire,  XXIV,  127-133. 

See  Int.  Law  Assn.,  Proceedings,  27th  Conference,  Paris,  213-281  ;  Pro- 
ceedings, 28th  Conference,  Madrid,  222-245  (embracing  Report  of  Committee 
upon  Aviation)  ;  Hague  Papers,  1914,  embracing  Report  of  the  Aerial  Law 
Committee,  E.  S.  M.  Perowne,  convener;  Proceedings,  Premier  Congres  du 
Comite  Juridique  International  de  L' Aviation,  Paris,  1911;  Proceedings, 
Deuxicme  Congres,  Geneva,  1912. 

See  Proceedings  of  the  First  International  Juridical  Congress  for  the  Regula- 
tion of  Aerial  Locomotion  at  Verona,  1910;  also  Rev.  Gen.,  XVII,  410;  "An 
Act  to  Regulate  Commerce  by  Airship",  embraced  in  Report  of  Committee 
on  Jurisprudence  and  Law  Reform  of  American  Bar  Association,  1911,  Reports 
of  American  Bar  Association,  XXXVI,  379,  381. 

325 


§  188]     GENERAL   RIGHTS    OF   PROPERTY   AND    CONTROL 

bears  to  the  territory  beneath  it  is  unlike  that  existing  between 
the  sea  and  the  land  adjacent  to  it ;  ^  and  statesmen  have  not 
been  blind  to  the  difference. 

It  may  require  a  national  exigency  unlikely  to  occur  save  in 
time  of  war,  to  afford  necessary  enlightenment  as  to  the  principle 
decisive  of  the  nature  and  scope  of  a  right.  The  abnormal  situa- 
tion confronting  a  State  at  such  a  time  may  not,  however,  afford 
a  sound  test  of  what  it  may  fairly  assert  as  a  territorial  sovereign 
under  ordinary  conditions  of  peace.  If  the  use  of  a  right  incidental 
to  the  exercise  of  supremacy  by  a  State  within  its  own  domain, 
such  as  one  pertaining  to  the  control  of  air  space  above  it,  is  to 
be  subjected  to  restraint  for  the  benefit  of  the  outside  world,  it 
must  be  due  to  a  manifestation  by  the  family  of  nations  of  a  general 
interest  in  the  abridgment,  and  one  sufficiently  acute  and  well- 
defined  to  find  expression  in  distinct  and  authoritative  form.  Such 
an  interest  is  likely  to  beget  appropriate  treaties,  which,  as  they 
become  numerous  or  win  the  acquiescence  of  enlightened  States 
generally,  tend  to  establish  limits  of  State  action.  Defiance  of 
these  is  increasingly  regarded  as  indicative  of  an  abuse  of  power. 

Two  distinct  and  unrelated  uses  of  air  space  vitally  affect  the 
subjacent  territory  —  those  involved  in  the  passage  of  aircraft, 
and  those  connected  with  the  movement  of  Hertzian  waves. 

(b) 

§  189.   The  Control  of  Aircraft. 

It  is  believed  to  be  the  right  of  a  State  generally  to  enact  such 
prohibitions,  restrictions  and  regulations  as  it  may  think  proper 
in  regard  to  the  passage  of  aircraft  through  the  air  space  above 
its  territories  and  territorial  waters.^  Such  a  view  does  not  appear 
to  be  at  variance  with  any  existing  practice,  and  seems  to  accord 
with  the  position  taken  by  the  United  States.^    The  territorial 

1  Harold  D.  Hazeltine,  Law  of  the  Air,  41-43. 

2  The  language  of  the  text  is  taken  from  the  resolutions  submitted  by  the 
Aviation  Committee,  Int.  Law  Association,  28th  Conference,  Madrid,  1913, 
Proceedings,  533. 

3  According  to  Rule  15  of  proclamation  of  President  Wilson,  Nov.  13,  1914, 
relating  to  the  neutrality  of  the  Panama  Canal  Zone,  "Aircraft  of  a  beUigerent 
Power,  public  or  private,  are  forbidden  to  descend  or  arise  within  the  juris- 
diction of  the  United  States  at  the  Canal  Zone,  or  to  pass  through  the  air 
spaces  above  the  lands  and  waters  within  said  jurisdiction."  38  Stat.  2039; 
American  White  Book,  European  War,  II,  18,  20.  See,  also.  Rule  13  of 
proclamation  of  President  Wilson,  May  23,  1917,  respecting  the  protection 
of  the  Panama  Canal,  Official  Bulletin,  May  31,  1917,  I,  No.  18,  p.  5;  Naval 
War  College,  Int.  Law  Documents,  1917,  243,  245. 

According  to  a  proclamation  by  President  Wilson  of  Feb.  28,  1918,  regulat- 

326 


THE  CONTROL  OF  AIRCRAFT  [§  189 

sovereign  is  not  impeded  by  any  artificial  horizontal  frontier  fixed 
at  an  arbitrary  distance  above  the  subjacent  land ;  and  it  is  not 
fettered  as  a  belligerent  in  the  enactment  of  prohibitions  deemed 
necessary  for  the  safety  of  its  domain. 

Subject  to  such  a  right  of  the  subjacent  State,  it  is  believed  that 
liberty  of  passage  ought  to  be  accorded  freely,  as  was  suggested 
by  the  Committee  on  Aviation  of  the  International  Law  Associa- 
tion, in  1913,  to  the  aircraft  of  every  nation.^ 

Doubtless  the  judgment  of  the  territorial  sovereign  as  to  the 
propriety  and  necessity  of  prohibitive  enactments  for  the  protec- 
tion of  its  own  domain  should  be  generally  respected.  It  may  be 
fairly  admitted  that  in  time  of  war  these  should  have  broadest 
scope.^  In  time  of  peace,  however,  it  is  not  unreasonable  to  con- 
ing the  flying  of  civilian  aircraft,  it  was  declared  that  as  a  war  measure,  a  license 
must  be  obtained  from  The  Joint  Army  and  Navy  Board  on  Aeronautic 
Cognizance  by  or  in  behalf  of  any  person  contemplating  flight  in  a  balloon, 
aeroplane,  hydroplane  or  other  machine  or  device  over  or  near  any  military 
or  naval  forces,  camp,  fort,  battery,  torpedo  station,  arsenal,  munition  factory, 
navy  yard,  naval  station,  coahng  station,  telephone  or  wireless  or  signal 
station,  or  any  building  or  office,  connected  with  the  National  Defense,  or  any 
place  or  region  within  the  jurisdiction  or  occupation  of  the  United  States  which 
might  be  designated  by  the  President  as  a  zone  of  war-like  operations  or  of 
war-like  preparation;  and  the  President  designated,  "for  the  present",  as 
such  a  zone  "the  whole  of  the  United  States  and  its  territorial  waters  and  of 
the  insular  possessions  and  of  the  Panama  Canal  Zone."  See  proclamation 
No.  14:^2,  Official  Bulletin,  II,  No.  249,  March  5,  1918,  p.  3.  Concerning 
procedure  to  get  licenses  imder  this  proclamation,  see  Official  Bulletin,  April  13, 
1918,  p.  4. 

See,  also,  Hawaiian  Act  of  April  19,  1917,  prohibiting  operation  of  aero- 
planes, balloons  and  other  aircraft  with  certain  restrictions,  Hawaiian  Session 
laws,  1917,  Act  107. 

See  Connecticut  Act  concerning  the  Registration,  Numbering  and  Use  of 
Airships,  and  the  Licenses  of  Operators  thereof,  Conn.  Public  Acts,  1911, 
Chap.  86 ;  Massachusetts  Act  to  Regulate  the  Use  of  Aircraft,  approved 
May  16,  1913,  Mass.  Acts,  1913,  Chap.  663 ;  North  Carolina  Act  in  effect 
Feb.  27,  1917,  rendering  it  unlawful  to  make  use  of  any  aeroplane,  sea-plane  or 
other  kind  of  air  machine  in  shooting  wild  ducks,  etc.,  Gregory's  Revisal 
Biennial,  1880c. 

See  French  decree  of  July  31,  1914,  forbidding  flying  throughout  France, 
Algeria,  Tunis  and  the  French  colonies,  except  by  Government  machines. 
Journal  Officiel,  Aug.  1,  1914;  also  decree  concerning  aerial  navigation, 
Nov.  21,  1911,  Journal  Officiel,  Nov.  25,  1911,  Duvergier,  Lois,  new  series. 
No.  Ill,  1911,  p.  518;  British  Aerial  Navigation  Acts,  1911,  1  &  2  Geo.  V,  c. 
4,  and  1913,  2  &  3  Geo.  V,  c.  22 ;  also  British  Orders  made  by  the  Secretary 
of  State  under  these  Acts,  March  1,  1913,  Brit,  and  For.  State  Pap.,  CVI,  646. 
See  exchange  of  notes  between  France  and  Germany  relative  to  aerial  naviga- 
tion between  the  territories  of  those  States,  July  26,  1913,  Brit,  and  For.  State 
Pap.,  CVII,  778. 

1  Proceedings,  28th  Conference,  Madrid,  1913,  p.  533. 

^  The  experience  of  the  several  belligerents  participating  in  The  World  War 
is  believed  to  have  sufficed  to  convince  each  of  the  imperative  necessity  of 
controlling  without  interference  the  air  space  over  its  own  domain. 

Illustrative  of  the  reasonable  exercise  by  the  United  States  of  its  belligerent 
right  of  control,  see  proclamation  of  President  Wilson,  Feb.  28,  1918,  regidating 
the  flying  of  civihan  aircraft,  appended  to  §  10212a,  U.  S.  Comp.  Stat.,  1918 
ed.,  embodying  Title  I,  §  1,  Chap.  30,  of  the  Espionage  Act  of  June  15,  1917. 

327 


§  189]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

tend  that  a  State  should  pursue  a  different  course,  and  not  decline 
to  agree  to  refrain  from  restricting  passage  except  for  the  purpose 
of  protecting  itself  against  known  or  anticipated  dangers,  or 
possibly  of  defraying  the  cost  of  protection.^  Thus  the  demands 
of  an  interior  State,  surrounded  by  land  and  possessed  of 
meager  water  communications  with  the  sea,  such  as  Bolivia  or 
Switzerland,  to  passage  by  air  over  the  territories  of  adjacent 
States,  acquire  strength  from  the  circumstance  that  the  society 
of  nations  is,  for  the  sake  of  its  entire  membership,  solicitous 
that  there  be  freest  access  to,  as  well  as  egress  from,  the  terri- 
tory of  each  country  by  every  practicable  means. 

As  the  development  of  the  science  of  aeronautics  has  already 
established  the  feasibility  of  prolonged  air  flights  of  vast  impor- 
tance in  facilitating  international  communications,  the  potential 
advantages  to  commercial  and  economic  interests  are  likely  to 
become  increasingly  influential  in  deterring  individual  States  from 
imposing  arbitrarv  barriers.'  The  same  influence  may  be  expected, 
moreover,  to  hasten  the  development  of  a  practice  tending  to 
restrict  the  very  right  of  a  territorial  sovereign  to  oppose  the  pas- 
sage of  foreign  aircraft  save  for  purposes  and  under  conditions 
generally  agreed  to  be  reasonable.^ 

(c) 

§  190.   The  International  Flying  Convention  of  1919. 

The  International  Flying  Convention  emanating  from  the  Peace 
Conference,  and  signed  in  behalf  of  certain  Powers  in  October,  1919, 

1  "After  the  full  right  of  a  State  to  protect  itself  and  its  subjects  has  been 
conceded,  there  remains  something  to  be  said  for  the  principle  of  discarding 
all  unnecessary  limitations  of  human  freedom  and  allowing  the  common  en- 
joyment and  use  of  the  air.  The  great  interests  of  mankind  lie  in  the  direction 
of  peace,  not  war.  After  the  necessary  safeguards  have  been  taken  for  the 
protection  of  the  safety  of  States,  we  should  look  rather  to  the  enlargement 
of  human  freedom  and  human  intercourse,  and  these  matters  are  too  precious 
to  be  left  to  the  absolute  discretion  of  each  particular  State."  Blewett  Lee, 
"Sovereignty  of  the  Air",  Am.  J.,  VII,  470,  490.  See,  also,  same  writer,  in 
Harv.  Law  Rev.,  XXXIII,  23. 

^  The  transportation,  for  example,  of  specie  by  air-craft  for  great  distances 
and  at  a  high  speed,  makes  possible  such  economy  of  time  and  cost,  and  thereby 
so  facilitates  the  payment  of  foreign  balances  as  to  furnish  in  itself  solid  reason 
for  general  arrangement  in  aid  of  use  of  air  space  over  foreign  territory  for 
this  purpose. 

^  The  Aerial  Law  Committee  of  the  International  Law  Association  in  its 
report  of  1914,  adverted  to  the  following  points  requiring  treatment  in  an 
international  code,  and  which  were  dealt  with  separately  and  fully  in  the 
project  then  submitted :  (1)  the  distinction  between  public  and  private  air 
vehicles ;  (2)  the  nationaUty  and  registration  of  air  vehicles ;  (3)  distinguish- 
ing marks  and  documents  indicative  of  nationality  and  registration  of  such 
vehicles;  and  (4)  the  right  of  alighting.  Int.  Law  Assn.,  Hague  Papers,  1914, 
218. 

328 


THE  INTERNATIONAL  FLYING  CONVENTION  OF  1919     [§  lOO" 

was  a  direct  response  to  the  pressing  need  of  a  general  contractual 
arrangement.^  While  it  was  there  recognized  that  "every  State 
has  complete  and  exclusive  sovereignty  in  the  air  space  above  its 
territory  and  territorial  waters  "/  each  contracting  party  under- 
took in  time  of  peace  to  accord  freedom  of  innocent  passage  above 
its  territory  and  territorial  waters  (embracing  those  of  its  colonies) 
to  the  aircraft  of  the  other  contracting  States,  provided  the  condi- 
tions established  in  the  convention  were  observed.^  It  was  agreed, 
moreover,  that  all  regulations  made  by  a  contracting  State  as  to  the 
admission  over  its  territory  of  the  aircraft  of  the  other  contracting 
States  should  be  applied  without  distinction  of  nationality.^ 

Each  contracting  State  retained  the  right,  for  military  reasons 
or  in  the  interest  of  public  safety,  to  prohibit  the  aircraft  of  the 
other  contracting  parties  from  flying  over  certain  areas  of  its 
territories.^  Nevertheless,  every  aircraft  of  a  contracting  State 
was  accorded  the  right  to  cross  another  State  without  landing, 
following,  however,  the  route  fixed  by  the  State  over  which  the 
flight  should  take  place.  INIoreover,  the  establishment  of  inter- 
national airways  was  to  be  subject  to  the  consent  of  the  States 
whose  territories  were  flown  over.^  It  was  declared  that  in  case 
of  war,  the  provisions  of  the  convention  were  not  to  affect  the 
freedom  of  action  of  the  contracting  States  either  as  belligerents 
or  neutrals. '^ 

Careful  provision  was  made  for  establishing  the  nationality  of 
aircraft,^  and  with  respect  to  certificates  of  airworthiness  and  com- 
petency,^ rules  to  be  observed  during  the  various  stages  of  flight,^" 
and   certain   prohibited    transportation.^^    Arrangement  for   the 

1  Senate  Doc.  No.  91,  66  Cong.,  1  Sess. ;  also  Convention  portant  reglementa- 
tion  de  la  navigation  aerienne  (13  Octobre  1919),  Cmd.  670,  London,  1920. 

2  Art.  II. 

'  See,  in  this  connection,  Blewett  Lee,  "The  International  Flying  Conven- 
tion", Harv.  Law  Rev.,  XXXIII,  23  ;  Arthur  K.  Kuhn,  "International  Aerial 
Navigation  and  the  Peace  Conference",  Am.  J.,  XIV,  369. 

*  Art.  II.  According  to  Art.  XVIII  the  passage  or  transit  of  any  aircraft 
with  or  without  landing  over  or  through  the  territory  of  any  contracting  State, 
including  stoppages  reasonably  necessary  for  the  purpose  of  such  transit,  was 
not  to  entail  any  seizure  or  detention  of  the  aircraft  by  or  on  behalf  of  such 
State  or  any  person  therein,  on  the  ground  that  the  constitution  or  mechanism 
of  the  aircraft  was  an  infringement  of  any  patent,  design  or  model,  duly 
granted  or  registered  in  such  State.  Every  claim  for  an  infringement  of  such  a 
kind  was  to  be  duly  made  in  the  coimtry  of  origin  of  the  aircraft. 

s  Art.  III. 

«  Art.  XV.  It  was  added,  however,  that  for  reasons  of  general  security  such 
an  aircraft  would  be  obliged  to  land  if  ordered  to  do  so  by  means  of  signals 
provided  in  an  Annex  to  the  Convention. 

'  Art.  XXXIX.  »  Arts.  V-X. 

8  Arts.  XI-XIV.  10  Arts.  XIX-XXVI. 

"  Arts.  XVII-XXX.     Thus  according  to  Art.  XXVII  the  carriage  by  aix- 

329 


§  190]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

treatment  of  State,  as  distinguished  from  private,  aircraft  was 
agreed  upon.^  An  International  Commission  for  Air  Navigation, 
to  be  a  part  of  the  League  of  Nations,  and  to  assume  permanent 
form,  was  devised,  and  arrangement  made  for  its  organization 
and  functions.^ 

,-  191.  The  Same. 

It  should  be  observed  that  the  privileges  of  the  convention  were 
to  be  confined  to  the  contracting  States,  and  to  those  to  be  per- 
mitted to  adhere  to  it,  and  that  the  right  of  adhesion  was  definitely 
restricted.^  The  opinion  has  been  expressed  that  these  restric- 
tions, prior  to  the  time  when  all  States  may  be  adherents,  are 
open  to  objection,  on  the  ground  that  a  right  of  essentially  innocent 
passage  will  be  denied  to  outside  States  equitably  entitled  to  it ; 
and  fear  is  expressed  lest  the  right  of  a  territorial  sovereign  to  fix 
air  routes  within  its  domain  may  be  productive  of  abuse  of  power.* 

craft  of  explosives  and  of  arms  and  munitions  of  war  was  declared  to  be  for- 
bidden in  international  navigation.  Nor  was  any  foreign  aircraft  to  be  per- 
mitted to  carry  such  articles  between  any  two  points  in  the  same  contracting 
State. 

^  Arts.  XXXI-XXXIV.  State  aircraft  were  said  to  embrace  military 
aircraft,  and  aircraft  exclusively  employed  in  State  service,  such  as  posts, 
customs  and  police.  Every  other  aircraft  was  deemed  to  be  "private." 
Moreover,  all  State  aircraft  other  than  military,  customs  and  police  aircraft, 
were  to  be  treated  as  private  aircraft,  and  as  such  to  be  subject  to  aU  of  the 
provisions  of  the  convention.     Art.  XXXI. 

According  to  Art.  XXXIII,  neither  the  flight  of  a  military  aircraft  of  a 
contracting  State  over  the  territory  of  another,  nor  its  landing  upon  such 
territory,  was  to  be  permitted  without  special  authorization.  In  case  of  such 
authorization,  such  an  aircraft  was  to  enjoy,  in  the  absence  of  special  stipula- 
tion, the  "privileges  of  extraterritoriality"  customarily  accorded  to  foreign 
vessels  of  war.  It  was  declared,  however,  that  a  military  aircraft  which 
was  forced  to  land,  or  was  compelled  or  required  to  land,  should  not,  by  reason 
of  that  circumstance,  acquire  a  right  of  extraterritoriality. 

2  Art.  XXXV. 

^According  to  Art.  XLIV :  "Any  State  which  took  part  in  the  present 
War  but  which  did  not  take  part  in  the  negotiation  of  this  Convention  may 
express  its  desire  to  adhere  to  this  Convention  and  may  be  admitted  to  adhere 
to  it,  if  such  a  State  is  a  member  of  the  League  of  Nations,  or  until  January  1st, 
1923,  by  a  unanimous  vote  of  the  Signatory  and  adhering  States  or,  after 
January  1st,  1923,  by  an  affirmative  vote  comprising  at  least  three  fourths 
of  the  total  possible  votes  of  the  signatory  and  adhering  States,  the  votes  of 
the  different  States  having  the  same  weight  as  that  provided  by  Art.  XXXV 
of  this  Convention  for  the  International  Commission  for  Air  Navigation." 

See,  also.  Art.  V  where  it  was  agreed  that  "no  contracting  State  shall,  ex- 
cept by  a  special  and  temporary  authorisation,  permit  the  flight  above  its 
territory  of  an  aircraft  which  does  not  possess  the  nationality  of  a  contracting 
State." 

*  "Must  the  winding  courses  of  international  rivers,  where  such  rivers  exist, 
be  followed  to  the  sea?  An  air  line  is  supposed  to  be  straight.  Can  the  pay- 
ment of  customs  duties  be  imposed  or  tolls  charged,  in  case  of  States  which 
do  not  happen  to  be  contracting  parties  to  the  Convention,  for  transit  of  their 
airships  over  the  air  space  of  other  States?  Must  commercial  airships  flying 
from  America  to  Scandinavia  avoid  passing  over  Great  Britain?     Will  air- 

330 


CONTROL  OF  HERTZIAN  WAVES  [§  192 

It  must  be  regretted  that  the  convention  assumed  the  form  of  a 
closely  guarded  arrangement  for  the  exclusive  benefit  of  States 
assigned  to  a  particular  group,  until  enlarged  according  to  their 
will,  rather  than  a  plan  designed  to  respect  the  equitable  claims 
of  every  State  in  need  of  access  by  air  to  distant  sea  or  land  over 
foreign  territory,  and  ready  to  submit  to  all  reasonable  and  uni- 
form restrictions  to  be  applied  to  its  craft.  The  demands  of  the 
international  society  deserved  closer  scrutiny  and  broader  respect. 

(d) 

§  192.    Control  of  Hertzian  Waves. 

It  is  doubtless  the  right  of  a  State  to  control  the  passage  of 
Hertzian  waves  through  the  air  space  over  its  territory.  The  reason 
for  the  exercise  of  such  control,  even  in  time  of  peace,  is  the  dis- 
turbance of  the  existing  local  systems  of  communication,  whether 
by  wire  or  wireless  devices,  which  may  otherwise  be  effected.^ 
Such  passage  does  not,  however,  involve  danger  to  the  subjacent 
land  through  the  operation  of  the  law  of  gravity  upon  a  body 
heavier  than  air.  Moreover,  disturbances  may  be  prevented 
without  necessarily  thwarting  the  passage  of  foreign  waves  or  of 
destroying  their  value.  This  circumstance  strengthens  the  equity 
of  the  claim  that  in  time  of  peace  the  territorial  sovereign  should 
not  oppose  any  arbitrary  barrier,  and  should  not,  therefore,  de- 
cline to  agree  to  refrain  from  so  doing.  General  concern  in  facili- 
tating the  communication  of  intelligence  by  every  available  pro- 
cess appears  already  to  have  welded  an  international    interest 

ships  be  denied  the  use  of  trade  winds  of  the  higher  air  levels?  Whatever 
reduces  by  prohibition  the  sum  of  human  rights  everywhere  is  worthy  of  con- 
sideration. Nothing  that  touches  the  universal  hfe  of  humanity  is  unim- 
portant. If,  as  everyone  hopes  and  believes,  commercial  aviation  will  be 
an  important  factor  in  the  future  life  of  nations,  States  excluded  frorn  the  Con- 
vention have  here  a  very  serious  ground  for  objection,  and  may  fairly  claim 
that  they  are  denied  the  common  rights  of  mankind.  Just  when  a  relief  had 
at  last  been  found  by  human  ingenuity  for  the  isolation  of  the  last  com- 
munities, and  a  way  had  been  opened  to  the  remotest  spots  of  the  earth,  here 
is  a  treaty  which  undertakes  to  deny  the  rehef  and  to  close  the  way,  except 
to  signatory  nations.  Switzerland  should  have  of  common  right  commercial 
access  to  the  sea  and  to  States  not  adjacent  by  the  air,  and  not  be  dependent 
for  it  upon  the  consent  of  other  nations.  The  notion  that  the  adjacent  sur- 
rounding countries  may  forbid  entirely  the  innocent  passage  of  Swiss  com- 
mercial aircraft  cannot  fairly  be  based  upon  the  idea  that  this  result  is  requisite 
for  the  safety  of  these  countries,  for  everybody  knows  better.  Nations  not 
parties  to  the  Convention  ought  to  seek  admission  to  it,  and  if  it  is  denied, 
they  are  entitled  to  feel  that  their  citizens  have  less  rights  than  other  men  and 
are  denied  a  substantial  part  of  human  freedom."  Blewett  Lee,  "The  Inter- 
national Flying  Convention",  Harv.  Law  Rev.,  XXXIII,  2.3,  34-35. 

1  Harold  D.  Hazeltine,  Law  of  the  Air,  96 ;  also  Bonfils-Fauchille,  7  ed., 
§§  531i'-531i8;  R.  Thurn,  Die  Funkentelegrafie,  Berlin,  1913. 

331 


§  192]     GENERAL    RIGHTS    OF    PROPERTY    AND    CONTROL 

which  is  real  because  it  is  vital,  and  is  thus  likely  to  become  de- 
cisive in  establishing  the  duties  and  acknowledging  the  rights 
of  individual  States.  The  International  Regulations  of  Wireless 
Telegraphy,  adopted  by  the  Institute  of  International  Law  in  1906, 
emphasized  the  significance  of  such  an  interest  theoretically 
existing.^ 

^  1 93.   The  Same. 

In  the  establishment  of  an  international  regime,  enlightened 
States  have  thus  far  proceeded  with  caution.  The  international 
conferences  at  Berlin  in  1903-  and  1906,^  as  well  as  that  at  London 
in  1912,  were  productive  of  agreements  imposing  slight  restraint 
upon  the  contracting  parties,  and  did  not  purport  to  indicate  how 
far  a  State  may  normally  interrupt  the  passage  of  foreign  waves 
over  its  own  domain. 

Certain  provisions  of  the  convention  of  1912  deserve  attention.^ 
According  to  Article  I,  the  contracting  parties  bind  themselves  to 
apply  the  provisions  of  the  convention  to  all  radio  stations  (both 
coastal  stations  and  stations  on  shipboard)  which  are  established 
or  worked  by  the  contracting  parties  and  open  to  public  service 
between  the  coasts  and  vessels  at  sea.^    There  is  acknowledged 

1  Annuaire,  XXI,  217 ;  J.  B.  Scott,  Resolutions,  164.  According  to  Art.  I : 
"  The  air  i-S  free.  States  have  over  it,  in  time  of  peace  and  in  time  of  war,  only 
the  rights  necessary  for  their  preservation."  It  is  provided  in  Art.  II  that 
in  the  absence  of  special  provisions,  the  rules  appUcable  to  ordinary  telegraphic 
correspondence  are  appUcable  to  wireless  telegraphic  correspondence.  Art. 
Ill  declares  that:  "Each  State  has  the  right,  in  the  measure  necessary  to 
its  seciu-ity,  to  prevent,  above  its  territor>'  and  its  territorial  waters,  and  as 
high  as  need  be,  the  passage  of  Hertzian  waves  whether  they  issue  from  a  gov- 
ernment apparatus  or  from  a  private  apparatus,  .situated  on  land,  on  a  vessel, 
or  on  a  balloon."  Art.  IV  provides  that,  "in  case  of  prohibition  of  correspond- 
ence by  wireless  telegraphy,  the  government  must  immediately  notify  the 
other  governments  of  the  prohibition  which  it  decrees." 

2  Xoiw.  Rec.  Gen.,  2  ser.,  XXXIII,  398-475.  See  declaration  of  Brig.  Gen. 
A.  W.  Greely  in  behalf  of  the  American  delegation  Aug.  5,  1903,  id.,  409. 

^  For  the  text  of  the  International  Wireless  Telegraph  Convention,  signed 
at  Berlin  Nov.  3,  1906,  and  to  which  the  United  States  became  a  party,  see 
Charles'  Treaties.  151 ;  also  supplementary  agreement  of  same  date,  iA.,  158, 
and  final  protocol  of  same  date,  id.,  160.  For  the  provisions  of  specified 
Articles  of  the  International  Telegraph  Convention,  signed  at  St.  Petersburg, 
Julv  10/22,  1875,  made  applicable  to  international  wireless  telegraphy  by 
Alt.  XVH  of  the  Convention  of  1906,  id.,  179-181. 

*  Charles'  Treaties,  185.  The  treaty  was  proclaimed  by  the  President 
July  8,  1913.  Concerning  the  convention  see  Documents  de  la  Conference 
Radiotelegraphique  Internationale  de  Londres.  published  by  the  Bureau  Inter- 
national de  r Union  Telegraphique,  Berne,  1913;  also  "Radio  Communication 
Laws  of  the  L'nited  States  and  the  International  Radiotelegraphic  Conven- 
tion", Department  of  Commerce,  Bureau  of  Xa\agation,  Radio  Service, 
Washington,  July  27,  1914. 

*  It  is  also  agreed  in  Art.  I  "to  make  the  observance  of  these  provisions 
obligatory  upon  private  enterprises  authorized  either  to  establish  or  work 

332 


THE   CONVENTION  OF  LONDON,   1912  [§  193 

in  Article  III  a  reciprocal  obligation  that  coastal  stations  and 
stations  on  shipboard  shall  exchange  radiograms  without  distinc- 
tion of  the  radio  system  adopted  by  such  stations ;  and  it  is  also 
provided  that  every  station  on  shipboard  shall  be  bound  to  ex- 
change radiograms  with  every  other  station  on  shipboard  without 
such  distinction.^  It  is  declared  in  Article  VIII  that  the  working 
of  radio  stations  shall  be  organized  as  far  as  possible  in  such  manner 
as  not  to  disturb  the  service  of  other  radio  stations  ;  and  according 
to  Article  IX,  radio  stations  are  bound  to  give  absolute  priority 
to  calls  of  distress  from  whatever  source,  to  answer  similarly  such 
calls,  and  to  take  such  action  with  regard  thereto  as  may  be  re- 
quired.^ It  is  provided  in  Article  XIV  that  any  radiogram  pro- 
ceeding from  a  station  on  shipboard  and  received  by  a  coastal  sta- 
tion of  a  contracting  country,  or  accepted  in  transit  by  the  admin- 
istration of  a  contracting  country,  shall  be  forwarded.^ 

In  time  of  war,  the  right  of  a  belligerent  to  control  the  passage 
of  Hertzian  waves  over  its  territory  must  be  acknowledged.^  The 
United  States  has  availed  itself  thereof.^ 

coastal  stations  for  radiotelegraphy  open  to  public  service  between  the  coast 
and  vessels  at  sea,  or  to  establish  or  work  radio  stations,  whether  open  to  gen- 
eral public  service  or  not,  on  board  of  vessels  flying  their  flag." 

1  In  the  same  Article  it  is  declared  that  "in  order  not  to  impede  scientific 
progress,  the  provisions  of  the  present  Article  shall  not  prevent  the  eventual 
employment  of  a  radio  system  incapable  of  communicating  with  other  systems, 
provided  that  such  incapacity  shall  be  due  to  the  specific  nature  of  such  sys- 
t-^m  and  that  it  shall  not  be  the  result  of  devices  adopted  for  the  sole  purpose 
of  preventing  intercommunication." 

2  The  resolution  of  the  Senate  advising  and  consenting  to  ratification  of  the 
convention,  contained  the  proviso  that  "The  Senate  advise  and  consent  to  the 
ratification  of  the  said  convention  with  the  understanding  to  be  expressed  as  a 
part  of  the  instrument  of  ratification  that  nothing  in  the  Ninth  Article  of  the 
Regulations  affixed  to  the  convention  shall  be  deemed  to  exclude  the  United 
States  from  the  execution  of  her  inspection  laws  upon  vessels  entering  in  or 
clearing  from  her  ports."     Charles'  Treaties,  222. 

3  .Art.  XIV  also  provides  that  each  of  the  high  contracting  parties  "reserves 
to  itself  the  right  of  fixing  the  terms  on  which  it  will  receive  radiograms  pro- 
ceeding from  or  intended  for  any  station,  whether  on  shipboard  or  coastal, 
which  is  not  subject  to  the  provisions  of  the  present  convention." 

According  to  the  same  Article:  "Any  radiogram  intended  for  a  vessel 
shall  also  be  forwarded  if  the  administration  of  the  contracting  country  has 
accepted  it  originally  or  in  transit  from  a  non-contracting  country,  the  coastal 
station  reserving  the  right  to  refuse  transmission  to  a  station  on  shipboard 
subject  to  a  non-contracting  country." 

^  See,  in  this  connection.  Rules  for  the  International  Regulation  of  Wireless 
Telegraphv,  adopted  bv  the  Institute  of  International  Law  in  1906,  Annuaire, 
XXI,  327,"  J.  B.  Scott, "Resolutions,  164. 

*  Act  of  Aug.  13,  1912,  to  regulate  radio  communication,  37  Stat.  302; 
executive  orders  of  President  Wilson,  No.  2585,  April  6,  1917,  and  No.  2605-A, 
April  30,  1917.  See  also  joint  resolution  approved  July  16,  1918,  65  Cong., 
2  Sess.,  Chap.  154,  authorizing  the  President,  in  time  of  war,  to  supervise  or 
take  possession  of,  and  assume  control  of  any  telegraph,  telephone,  marine 
cable,  or  radio  system  or  systems  or  any  part  thereof,  and  to  operate  the  same 
in  such  manner  as  may  be  needful  or  desirable  for  the  duration  of  the  war,  and 

333 


§  193]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

It  will  be  found  that  neutral  States  are  burdened  with  the 
obligation  not  to  permit  the  establishment  and  operation  within 
places  under  their  control,  of  belligerent  radio  stations.  The 
burden  of  the  duty  of  a  neutral  with  respect  to  the  passage  of 
waves  destined  for  a  belligerent  power,  and  conveying  intelligence 
of  military  value  is  discussed  elsewhere.^ 

(10) 
Transit  by  Land 

(a) 
§  194.   In  General. 

It  may  be  doubted  whether  as  yet  practice  has  established  gen- 
eral acquiescence  in  the  principle  that  a  State  owes  a  legal  duty 
to  another  to  agree  to  yield  to  it  on  equitable  terms  privileges  of 
transit  by  land  across  the  national  domain.  It  must  be  clear, 
however,  that  the  principle  which  the  international  society  in- 
vokes in  its  demand  that  the  territory  of  each  of  its  members  be 
accessible  to  and  from  the  sea  is  broad  enough  to  affect  the  use  of 
any  appropriate  channel  of  communication,  and  is  not  incapable  of 
practical  application  to  modes  of  transit  by  land  as  well  as  water .^ 
It  must  be  apparent  that  the  strength  of  the  claim  to  a  privilege 
of  transit  across  foreign  territory  depends  upon  the  nature  and 
importance  of  the  channel  of  communication  to  the  domain  of  a 
State,  and  that  it  varies  according  to  the  geographical  position 
and  relative  isolation  of  the  territory  of  the  claimant.  Thus  the 
demands  for  privileges  of  transit  to  and  from  Switzerland  over  the 
territories  of  States  adjacent  to  it  could  be  pressed  with  greater 
force  than  demands  for  like  privileges  across  American  territory 
from  the  Atlantic  to  the  Pacific.  Again,  the  obvious  and  special 
needs  of  a  State,  such  as  Switzerland,  of  means  of  transit  by  con- 
venient routes  across  foreign  territory'  offering  direct  communica- 
te provide  just  compensation  therefor;  proclamation  of  President  Wilson, 
No.  1466,  July  22,  1918.  Official  Bulletin,  July  24,  1918,  Vol.  II,  No.  368, 
p.  1 ;  Effect  of  War  on  Normal  Relations  between  Opposing  Belligerents, 
Interference  with  Means  of  Communication,  infra,  §§  606-607. 

1  Neutrality,  infra,  §§  848  and  855. 

2  "The  new  theory  of  servitudes  on  land  differs  from  the  old,  which  was 
based  on  expediency  and  advantage,  in  that  the  new  depends  on  an  assertion 
of  right  which  arises  from  an  asserted  principle  that  a  nation  ought  not  to  be 
barred  from  the  sea,  the  common  property  and  highway  of  mankind,  and  thus 
deprived  of  the  opportunity  to  engage  in  ocean-borne  commerce."  Robert 
Lansing,  "Some  Legal  Questions  of  the  Peace  Conference",  American  Bar 
Association,  Reports  (1919),  XLIV,  238,  248. 

334 


CERTAIN  CONVENTIONAL  ARRANGEMENTS       [§  195 

tion  with  the  sea,  should  receive  greater  consideration  than  those 
of  States  not  so  circumstanced  and  yet  strongly  desirous  of  freest 
access  to  foreign  land-locked  areas. 

Claims  of  transit  over  foreign  territory  must  always  be  regarded 
as  subordinate  to  the  requirements  of  the  sovereign  thereof.  WTien 
it  becomes  a  belligerent  its  special  needs  are  accentuated ;  and 
even  in  seasons  of  peace  the  superiority  of  its  position  is  not  to  be 
questioned.^  There  is  no  room  for  a  conflict  of  equal  equities. 
The  fact  remains,  however,  that  under  normal  conditions  certain 
commercial  privileges  of  transit  may  be  yielded  without  impairing 
rights  of  governmental  administrative  control  or  those  involved 
in  the  exercise  of  jurisdiction,  and  without  subjecting  the  grantor 
to  economic  injury.  This  is  believed  to  be  true  although  the 
territorial  sovereign  agrees  not  to  exact  transit  duties,  or  to  insist 
upon  the  use  of  special  routes,  or  to  impose  undue  restrictions 
of  any  sort.  The  position,  therefore,  of  the  State  whose  territory, 
notwithstanding  its  vital  importance  as  a  channel  of  commerce 
to  special  groups  of  other  States  or  to  international  trade  generally, 
offers  in  time  of  peace  an  obstacle  rather  than  an  aid  to  transit, 
is  likely  to  be  increasingly  regarded  as  untenable. 

(b) 

§  195.    Certain  Conventional  Arrangements. 

The  United  States  has  on  occasion  entered  into  conventions 
containing  provision  for  transit  by  land.  By  means  of  Article 
XXXV  of  the  treaty  with  New  Granada  (Colombia)  of  December 
12,  1846,  the  former  acquired  a  right  of  way  or  transit  for  com- 
mercial purposes  across  the  Isthmus  of  Panama  by  any  mode  of 
interoceanic  communication.^  According  to  Article  XXIX  of  the 
Treaty  of  Washington  of  May  8, 1871,  it  was  agreed  that  for  a  term 
of  years  goods  arriving  at  certain  American  ports  and  destined 
for  British  North  American  possessions  might  be  "  entered  at  the 
proper  custom-house  and  conveyed  in  transit,  without  the  payment 
of  duties,  through  the  territory  of  the  United  States",  under  such 
rules,  regulations  and  conditions  for  the  protection  of  its  revenue 
as  it  might  prescribe ;  it  was  declared  that  and  under  like  rules, 
regulations  and  conditions,  goods  might  be  conveyed  in  transit, 

^  Thus  the  right  of  a  State  to  forbid  the  passage  across  its  territory  of  foreign 
military  forces  could  not  be  challenged.     Infra,  §  201. 

2  Malloy's  Treaties,  I,  312.  See,  in  this  connection,  documents  in  Moore, 
Dig.,  Ill,  5-19. 

335 


§  195]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

without  payment  of  duties,  from  such  British  possessions  through 
the  territory  of  the  United  States  for  export  from  its  ports.^ 

§  196.  The  Same. 

Conventions  resulting  from  The  World  War  made  significant 
provisions  for  transit  by  land.  Thus  Germany,  by  the  Treaty  of 
Versailles  of  June  28,  1919,  and  Austria,  by  the  Treaty  of  Saint- 
Germain-en-Laye,  of  September  10,  1919,  were  obliged  to  under- 
take to  grant  freedom  of  transit  through  their  respective  terri- 
tories, by  the  routes  most  convenient  for  international  transit, 
by  rail  as  well  as  by  water,  to  persons,  goods  and  vehicles  of  trans- 
portation coming  from  or  going  to  the  territories  of  any  of  the  Allied 
or  Associated  Powers,  whether  or  not  contiguous,  and  without 
the  imposition  of  transit  or  customs  duties,  or  undue  delays  or 
restrictions,  or  unreasonable  charges  for  transportation,  or  ad- 
verse discriminatory  treatment.^  The  obligation  not  to  main- 
tain control  over  transmigration  traffic  through  those  territories, 
save  with  respect  to  specified  measures,  was  accepted.  Arrange- 
ments in  pursuance  of  these  general  requirements  were  amplified 
and  given  also  particular  application  to  international  transport 
by  rail.^  It  was  provided,  however,  that  after  periods  of  years, 
the  continued  right  of  an  Allied  or  Associated  Power  to  claim  the 
benefits  of  the  general  stipulations  respecting  freedom  of  transit, 

1  Malloy's  Treaties,  I,  712.  By  the  same  Article  goods  arriving  at  British 
North  American  ports  and  destined  for  the  United  States  were  to  be  under 
like  conditions  conveyed  in  transit  through  British  territory,  and  similarly, 
goods  were  to  be  conveyed  in  transit  on  like  terms  from  the  United  States, 
through  the  British  possessions  to  other  places  in  the  United  States,  or  for 
export  from  British  American  ports. 

Cf.  President  Harrison,  message  of  Feb.  2,  1893,  Richardson's  Messages,  IX, 
335;  House  Misc.  Doc.  No.  210,  53  Cong.,  2  Sess.,  37,  declaring  that  this 
Article  of  the  treaty  was  not  considered  to  be  in  effect. 

According  to  Rev.  Stat.,  §  3005,  as  amended  by  the  Act  of  May  21,  1900, 
Chap.  487,  31  Stat.  181 :  "All  merchandise  arriving  at  any  port  of  the  United 
States  destined  for  any  foreign  country  may  be  entered  at  the  custom-house 
and  conveyed,  in  transit,  through  the  territory  of  the  United  States,  without 
the  payment  of  duties,  under  such  regulations  as  to  examination  and  trans- 
portation as  the  Secretary  of  the  Treasury  may  prescribe." 

See,  also,  the  minor  provisions  contained  in  Art.  XXXII  of  the  treaty 
with  Mexico  of  April  5,  1831,  Malloy's  Treaties,  I,  1095,  and  in  Art.  VI  of  the 
treaty  with  that  State  of  Feb.  2,  1848,  id.,  WW. 

Not  infrequently  the  conventions  of  the  United  States  have  accorded 
the  nationals  of  the  contracting  parties  a  reciprocal  exemption  from  all  transit 
duties.  See,  for  example,  Art.  VI  of  the  treaty  with  Japan  of  Feb.  21,  1911, 
Charles'  Treaties,  79. 

2  Arts.  321-326  of  the  treaty  with  Germany;  also  Arts.  284-289  of  the 
treaty  with  Austria. 

3  Arts.  385-370,  and  372-374,  of  the  treaty  with  Germany ;  also  Arts.  311- 
317,  and  319-325,  of  the  treaty  with  Austria. 

336 


CERTAIN  TREATIES  OF  1919  [§  196 

and  certain  special  ones  respecting  railways,  should  depend  upon 
the  concession  of  reciprocal  privileges.^ 

It  may  be  observed  that  Germany  agreed  that  the  Czecho- 
slovak State  might  require  within  a  specified  period  of  time  the 
construction  at  its  expense  of  a  railway  line  across  German  terri- 
tory between  the  stations  of  Schlauney  and  Xachod,^  and  that 
Austria  agreed  that  Italy  might  within  a  like  period  require  the 
construction  or  improvement  of  the  new  trans-alpine  lines  of  the 
Col  de  Reschen  and  the  Pas  de  Predil.^  "In  view  of  the  im- 
portance to  the  Czecho-Slovak  State  of  free  communication 
between  that  State  and  the  Adriatic",  Austria  recognized  the 
right  of  the  Czecho-Slovak  State  to  run  its  own  trains  over 
certain  sections  included  within  Austrian  territory  on  specified 
lines.^  ]\Ioreover,  the  so-called  "running  powers"  were  to  em- 
brace the  right  to  establish  running  sheds  with  small  shops 
for  minor  repairs  to  locomotives  and  rolling  stock,  and  to  ap- 
point representatives  where  necessary  to  supervise  the  working 

1  According  to  Art.  378  of  the  treaty  with  Germany,  and  Art.  3.30  of  the 
treaty  with  Austria,  such  stipulations  (which  were  specified)  were  to  be  subject 
to  revision  by  the  Council  of  the  League  of  Nations  at  any  time  after  the 
expiration  of  a  fLxed  period  of  years  (which  was  five  in  the  German  treaty 
and  three  in  the  Austrian)  following  the  coming  into  force  of  the  treaty. 
Failing  such  revision,  or  the  prolongation  by  the  Council  of  the  period  during 
whiclM^ciprocity  could  not  be  demanded,  the  principle  of  reciprocity  was  to 
become  applicable. 

It  was  declared  in  the  treaty  with  Austria  that  the  benefits  of  the  stipula- 
tions could  not  be  claimed  by  States  to  which  territory  of  the  former  Austro- 
Hungarian  Monarchy  had  been  transferred,  or  which  had  arisen  out  of  the 
dismemberment  of  that  Monarchv,  except  apon  the  footing  of  giving,  in  the 
territory  passing  under  their  sovereignty  in  virtue  of  the  same  treaty,  reciprocal 
treatment  to  Austria. 

See,  in  this  connection,  communication  of  M.  Clemenceau,  President  of 
the  Peace  Conference,  June  16,  1919,  to  the  President  of  the  German  Delega- 
tion, with  respect  to  the  requirements  of  the  German  treaty.  Misc.  No.  4  (1919), 
[Cmd.  258], p.  62;  also  David  Hunter  Miller,  "The  International  Regime  of 
Ports,  Waterways  and  Railways",  Am.  J.,  XIII,  669,  670-672,  quoting  the 
foregoing  communication. 

C/.,  also,  reciprocal  provisions  for  freedom  of  transit  contained  in  Art.  XVII 
of  treaty  of  June  28,  1919,  between  the  Principal  Allied  and  Associated  Powers 
and  Poland,  British  Treaty  Series  No.  8  (1919),  [Cmd.  223],  p.  9;  also  those 
contained  in  Art.  XV  of  the  treaty  between  the  Principal  Allied  and  As- 
sociated Powers  and  the  Serb-Croat-Slovene  State,  of  Sept.  10,  1919,  British 
Treaty  Series,  1919,  |Cmd.  461]. 

2  Art.  373  of  the  Treatv  of  Versailles  of  June  28,  1919.  "The  two  towns 
mentioned,  Nachod  in  Czecho-Slovakia,  and  Schlauney  (or  Schlanei)  in  Ger- 
many, are  about  two  and  one-quarter  miles  distant  from  each  other  in  a  direct 
line.  The  chief  purpose  of  the  proposed  rail  connection  is  to  facilitate  the 
transport  of  coal  from  upper  Silesia.  The  road  to  be  built  would  probably 
be  less  than  a  mile  in  length,  as  the  existing  lines  are  at  one  point  only  about 
half  a  mile  apart."     David  Hunter  Miller,  in  Am.  J.,  XIII,  684. 

3  Art.  321  of  the  Treaty  of  Siiint-Germain-en-Laye,  of  Sept.  10,  1919.  Ar- 
rangement was  here  made  for  the  ultimate  adjustment  of  the  cost. 

*  Art.  322  of  the  same  treaty. 

337 


§  196]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

of  trains.^  To  Austria  was  accorded  "free  access  to  the  Adri- 
atic." That  State  was  with  such  object  to  be  permitted  to  enjoy 
freedom  of  transit  over  the  territories  and  in  the  ports  severed 
from  the  former  Austro-Hungarian  Monarchy.^ 

The  foregoing  provisions  appear  to  mark  the  estabHshment  of 
a  conventional  regime  which  if  feasible  in  operation  may  be  ex- 
pected to  win  increasing  approval."^  It  may  be  doubted,  however, 
whether  the  United  States,  in  view  of  the  location,  extent  and 
condition  of  its  continental  possessions,  would  consent  to  a  rule 
compelling  it  on  the  demand  of  a  foreign  State  to  agree  to  a  re- 
ciprocal arrangement  conferring  privileges  of  transit  across  Amer- 
ican territory  such  as  have  been  j-ielded  by  Austria  and  Germany. 
Nor  would  it  be  disposed  to  admit  that  the  requirements  of  the 
underlying  principles  are  such  as  to  call  for  a  uniform  application 
with  respect  to  every  territory  of  every  State. 


(11) 

The  Protection  of  Areas  by  Neutralization  and  Other  Processes. 
International  Waterways 

(a) 
§  197.   In  General. 

A  group  of  States  may  undertake  to  accord  permanent  protec- 
tion from  hostile  operations  to  a  particular  area  of  land  or  water 
within  or  between  the  territories  of  any  of  their  number.^  The 
arrangement  may  provide  that  certain  persons  and  things  shall 
be  immune  from  attack,^  or  that  hostilities  shall  not  be  com- 
mitted within  the  area,  or  that  it  shall  not  serve  a  belligerent 
purpose,  such,  for  example,  as  a  means  of  facilitating  the  trans- 
portation of  military  forces.     The  agreement  may  even  mark  the 

1  Art.  323,  and  also  324.  See,  also,  in  this  connection,  convention  relative 
to  transit  through  Salonica,  concluded  between  Greece  and  Serbia,  May  lOj 
1914,  Am.  J.,  XIII,  Supp.,  441. 

'^  Art.  311  of  Austrian  treaty  of  peace  of  Sept.  10,  1919. 

^  It  may  be  noted  that  according  to  Art.  XXIII  of  the  Covenant  of  the 
TiSague  of  Nations  and  constituting  a  part  of  the  treaties  of  peace  with  both 
'  T^'-many  and  Austria,  the  Members  agree  to  make  provision  to  secure  and 
maintain  freedom  of  communications  and  of  transit  and  of  equitable  treatment 
for  the  commerce  of  all  Members  of  the  League. 

*  Such  an  attempt  may  be  made  even  though  the  area  constitutes  a  part 
of  the  territory  of  a  State,  which  it  is  not  sought  otherwise  to  neutralize. 

*  See,  for  example,  Arts.  I  and  XXI  of  the  public  act  of  Nov.  1,  1865,  rati- 
fied at  the  Conference  of  Paris  of  March  28,  1866,  with  respect  to  the  works, 
establishment  and  administration  of  the  Danube,  Brit,  and  For.  State  Pap., 
LV,  94,  99,  quoted  in  Joseph  P.  Chamberlain,  The  Danube,  Dept.  of  State, 
confidential  document,  1918,  87. 

338 


IN  GENERAL  [§  197 

attempt  to  impose  a  condition  of  permanent  neutrality  upon 
the  area.^ 

Two  distinct  aspects  of  such  undertakings  deserve  considera- 
tion. The  one  concerns  a  matter  of  feasibility  or  expediency; 
the  other  involves  a  question  of  law ;  and  both  appear  in  a  new 
light  since  occurrences  of  The  World  War. 

A  number  of  States,  such,  for  example,  as  those  whose  terri- 
tories are  traversed  or  separated  by  an  international  river,  may 
profess  concern  as  to  conditions  of  navigation  in  time  of  conflict, 
and  conclude  an  agreement  designed  to  protect  the  stream  and  its 
establishments  should  war  ensue.  Upon  its  outbreak,  if  the  con- 
tracting States  are  aligned  as  opposing  belligerents,  there  is  likely 
to  be  a  sharp  conflict  of  interest  with  respect  to  the  proper  uses 
of  the  river,  and  one  so  vital  as  to  encourage  disregard  of  the  com- 
pact by  that  party  which  would  suffer  a  relative  strategic  detri- 
ment should  it  observe  the  restraints  imposed.  The  danger  of 
contempt  for  the  arrangement  is  shown  to  be  proportional  to  the 
opportunity  which  it  leaves  open  to  any  contracting  belligerent 
party  to  utilize  the  stream  for  a  military  end.  An  agreement  im- 
posing a  duty  to  protect  merely  the  works  and  establishments 
pertaining  to  navigation,  offers  a  frail  bond  of  restraint.  Nor  are 
provisions^  devised  to  localize  hostilities  by  forbidding  their  com- 
mission in  a  particular  stream  in  close  proximity  to,  or  in  the  very 
path  of  belligerent  operations  likely  to  prove  a  real  deterrent.  So 
long  as  a  waterway  is  permitted  to  remain  a  means  of  military 
communication  and  transportation  serving  one  belligerent  and 
barred  against  its  foe,  the  latter  must  be  expected  to  make  ex- 
traordinary effort  to  obstruct  passage  and  stop  navigation.^    Con- 

^  "Neutralization  is  the  imposition  by  international  agreement  of  a  condi- 
tion of  permanent  neutrality  upon  lands  and  waterways."  Cyrus  F.  Wicker, 
Neutralization,  I. 

2  Declares  an  authoritative  commentator  with  respect  to  the  belligerent 
uses  of  the  Danube  during  The  World  War:  "The  active  naval  operations 
on  the  river,  with  the  mines  which  were  their  consequence,  all  clear  breaches 
of  the  treaty  of  Berlin,  illustrate  the  difficulty  in  the  way  of  attempts  by 
treaty  to  prevent  strong  States  from  using  any  force  at  their  disposal  to  beat 
the  enemy,  and  emphasize  the  impossibility  of  preventing  naval  activity  on  a 
river  forming  a  military  line  unless  military  activity  on  each  side  of  and  across 
that  river  is  also  prevented.  ... 

"Experience  in  two  wars,  1877  and  1914,  has  conclusively  shown  that 
neutralization  of  the  Danube  is  impracticable.  If  troops  are  allowed  to 
cross  the  river,  if  shore  batteries  can  bombard  forts  and  towns  on  the  hostile 
opposite  bank,  then  reasonable  means  of  defense  on  the  water  should  not  be 
prohibited.  The  existing  treaty  limitations  (treaty  of  Berlin,  Article  _LII) 
on  fortifications  and  the  use  of  warships  on  the  river  were  never  effectively 
enforced,  and  the  result  has  been  to  limit  the  freedom  of  Koumania  to  protect 
her  own  territory."  Joseph  P.  Chamberlain,  The  Danube,  Dept.  of  State, 
confidential  document,  1918,  76,  107-lOS. 

339 


§  197]     GENERAL  RIGHTS    OF   PROPERTY   AND   CONTROL 

ventions  which  ignore  such  probabiHties  and  purport  merely  to 
impose  minor  restraints  upon  the  contracting  parties  fall  far  short 
of  those  designed  to  attach  to  an  area  a  status  of  permanent  neu- 
tralization. They  reveal  no  collective  design  to  isolate  it  from 
warlike  operations,  and  still  less  a  joint  undertaking  to  guarantee 
the  maintenance  of  such  a  condition.^  An  international  arrange- 
ment may,  however,  give  appropriate  expression  to  such  a  purpose. 
If  it  provides  for  the  impressment  of  permanent  neutralization, 
forbidding  all  acts  within  the  area  or  uses  thereof  as  would  be  denied 
a  belligerent  with  respect  to  neutral  territory,  and  especially  if  it 
is  buttressed  by  a  common  guaranty  of  interested  powers,  there 
is  automatically  established  a  check  which,  by  reason  of  its  very 
nature,  minimizes  the  grounds  and  invalidates  the  excuses  for  a 
possible  breach. 

The  States  most  concerned  in  the  treatment  to  be  applied  to  an 
international  waterway  or  other  area  may  not,  however,  be  dis- 
posed to  consent  to  an  arrangement  of  large  and  permanent  de- 
sign. Such  reluctance  gives  rise  to  the  inquiry  whether  a  legal 
duty  rests  upon  a  State  to  acquiesce  in  a  plan  contemplating  per- 
manent neutralization  or  in  one  of  less  magnitude.  It  must  be 
recognized  that  normally  no  State  is  obliged  to  agree  to  abandon 
the  right  when  a  belligerent  to  commit  hostile  acts  within  a  zone 
of  land  or  water  belonging  to  or  controlled  by  its  enemy,  or  to 
yield  to  foreign  powers  the  right  to  attach  an  artificial  condition 
such  as  a  new  status  to  a  portion  of  its  own  domain.  On  the  other 
hand,  it  must  be  acknowledged  that  a  particular  area,  especially 
if  it  be  an  international  waterway,  may  bear  such  a  relationship  to 
a  special  group  of  maritime  States  through  its  connection  with 
their  territories,  and  to  others  as  a  necessary  channel  of  com- 
munication between  oceans  or  a  means  of  access  to  interior  ports, 
as  to  establish  a  solid  and  equitable  demand  for  neutralization. 
Thus  the  society  of  maritime  States  may  be  practically  united 
in    such    a    claim.     The   point  to  be  emphasized  is  that  this 

'  See,  in  this  connection,  Cyrus  F.  Wicker,  Neutralization,  3-4,  7,  39. 

The  Straits  of  Magellan  were  said  to  be  "neutralized  forever"  and  free 
navigation  guaranteed  to  the  flags  of  all  nations,  by  the  provisions  of  Art.  V 
of  the  treaty  between  the  Argentine  RepubUc  and  Chile  of  July  23,  1881. 
Brit,  and  For.  State  Pap.,  LXXII,  1103.  Prior  to  the  negotiation  of  this 
treaty,  Mr.  Evarts,  Secy,  of  State,  in  a  communication  to  Mr.  Osborn,  Jan. 
18,  1879,  declared  that  the  United  States  would  not  tolerate  any  exclusive 
claims  of  any  foreign  nation  over  the  straits,  and  would  hold  responsible  any 
government  undertaking  to  lay  any  impost  or  check  on  American  commerce 
passing  through.  MS.  Inst.  Chile,  XVI,  238,  Moore,  Dig.,  I,  664,  note.  See, 
also,  Jean  Marie  Abribat,  Le  Detfoit  de  Magellan  au  Point  de  Vue  International, 
Paris,  1902. 

340 


THE  PANAMA  CANAL  [§  198 

claim  of  the  international  society  may  in  a  particular  case,  as  in 
that  of  the  Dardanelles,  be  strong  enough  to  justify  a  demand 
for  acquiescence  on  the  part  of  any  individual  State  technically 
possessed  of  a  preponderant  territorial  interest.  It  is  equally 
important  to  observe,  however,  that  that  society  will  not  assert 
a  paramount  claim  save  when  the  requirements  of  justice  are 
deemed  to  offer  no  alternative,  and  least  of  all  when  a  territorial 
sovereign,  by  arrangement  with  any  others,  preserves  itself  the 
area  from  hostile  operations  in  all  seasons,  for  the  benefit  of  all 
States  fairly  entitled  to  its  use. 

(b) 
§  198.   The  Panama  Canal. 

The  status  of  the  Panama  Canal  is  the  result  of  a  contractual 
relationship  established  between  the  United  States  and  Great 
Britain  by  the  terms  of  the  Clayton-Bulwer  Treaty  of  April  19, 
1850,^  and  renewed  and  modified  by  the  superseding  provisions  of 
the  Hay-Pauncefote  Treaty  of  November  18,  1901,^  in  which  the 
Republic  of  Panama  at  the  very  beginning  of  its  life  as  a  State 
acquiesced.^ 

The  conventron  of  1850  contemplated  the  application  of  the 
principle  of  neutralization  to  any  trans-Isthmian  ship  canal  or 
other  means  of  interoceanic  communication  that  might  be  con- 
structed. To  that  end  the  contracting  parties  pledged  them- 
selves to  appropriate  guaranties,  and  each  also  undertook  specif- 
ically to  refrain  from  obtaining  for  itself  exclusive  control  over 
any  ship  canal,  and  to  abstain  from  occupying,  colonizing  or  as- 
suming dominion  over  any  part  of  Central  America,  and  from  the 
acquisition  of  special  advantages  in  trans-isthmian  commerce  or 
navigation  that  should  not  accrue  to  the  citizens  of  both.  The 
erection  or  maintenance  of  fortifications  was  definitely  forbidden. 
Moreover,  outside  States  were  to  be  invited  to  enter  into  stipula- 
tions with  the  contracting  parties  similar  to  those  of  the  treaty, 
with  a  view  to  permitting  general  participation  in  the  "honor  and 
advantage  "  of  the  work  designed.  The  convention  failed,  however, 
to  be  the  means  of  facilitating  the  construction  of  a  trans-isthmian 
canal,  an  achievement  that  awaited  the  conclusion  of  fresh  agree- 
ments of  the  twentieth  century.^ 

^  Malloy's  Treaties,  I,  659.  C/.,  in  this  connection,  The  Monroe  Doctrine, 

infra,  §  94.  2  Malloy's  Treaties,  I,  782. 

3  Convention  of  Nov.  18,  190.3,  Malloy's  Treaties,  II,  1349.  C/.,  also, 
Panama,  supra,  §  20. 

^  Declared  Mr.  Hay,  Secy,  of  State,  in  a  personal  communication  to  Mr. 

341 


§  198]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

The  Hay-Pauncefote  Treaty,  which  by  its  terms  superseded  the 
Clayton-BulwerTreaty,  "without  impairing  the  'general  principle' 
of  neutralization"  established  therein/  permitted  the  construction 
of  an  essentially  American  canal  under  American  control.  It  was 
to  be  maintained  and  protected  by  the  United  States,  which  was 
not  denied  the  right  of  fortification,  or  burdened  with  the  duty  of 
sharing  the  work  of  maintenance  or  protection  with  Great  Britain 

CuUom,  Chairman  of  the  Senate  Committee  on  Foreign  Relations,  Dec.  12, 
1901:  "The  Clayton-Buhver  Treaty  of  1850,  which  contemplated  the  con- 
struction of  a  canal  under  the  joint  auspices  of  the  two  Governments,  to  be 
controlled  by  them  jointly,  its  neutrality  and  security  to  be  guaranteed  by 
both,  was  almost  from  the  date  of  its  ratification  the  subject  of  frequent  dis- 
cussion and  occasional  irritation  between  the  two  Governments.  Nearly 
half  a  century  elapsed  without  any  step  being  taken  by  either  toward  carry- 
ing it  into  practical  effect  by  the  construction  of  a  canal  under  its  provisions. 
Instead  of  being,  as  was  intended,  an  instrument  for  facilitating  the  construc- 
tion of  a  canal  it  became  a  serious  obstacle  in  the  way  of  such  construction. 
In  the  meantime  the  conditions  which  had  existed  at  the  time  of  its  ratifica- 
tion had  wholly  changed.  The  commerce  of  the  world  had  multiplied  many 
fold.  The  gro^vth  of  the  United  States  in  population,  resources,  and  ability 
had  been  greater  still.  The  occupation  and  development  of  its  Pacific  coast 
and  its  commercial  necessities  upon  the  Pacific  Ocean  created  a  state  of  things 
hardly  dreamt  of  at  the  date  of  the  treaty.  At  last  the  acquisition  of  the 
Hawaiian  and  the  Philippine  Islands  rendered  the  construction  of  the  canal 
a  matter  of  imperative  and  absolute  necessity  to  the  Government  and  people 
of  the  United  States,  and  a  strong  national  feeling  in  favor  of  such  construc- 
tion arose,  which  grew  with  the  progress  of  events  into  an  irrevocable  deter- 
mination to  accomplish  that  object  at  the  earliest  possible  moment.  .  .  . 

"But  the  Clayton-Bulwer  Treaty  stood  in  the  way.  Great  Britain  did  not 
manifest,  and  it  is  believed  did  not  entertain,  the  remotest  idea  of  joining 
or  aiding  in  such  a  work.  The  United  States  was  able  to  bear  alone  the  entire 
cost  of  the  canal,  but  was  apparently  prohibited  by  the  existing  treaty  from 
undertaking  the  enterprise  which,  although  carried  out  at  its  own  expense, 
would  redound  to  the  benefit  of  the  world's  commerce  quite  as  much 
as  to  its  own  advantage.  The  President,  loyal  to  treaty  obligations,  was  un- 
willing to  countenance  any  demand,  however  widespread,  for  proceeding 
with  the  construction  of  the  canal  until  he  could  obtain  by  friendly  negotia- 
tion, on  which  he  confidently  relied,  the  consent  of  Great  Britain  to  the  abro- 
gation of  the  Clayton-Bulwer  Treaty,  or  such  a  modification  of  its  terms  as 
would  enable  the  United  States  untrammeled  to  enter  upon  the  great  work 
whose  successful  accomplishment  was  vitally  necessary  to  its  own  security, 
and  would  benefit  the  people  of  all  other  nations  according  to  their  respective 
interests  in  the  commerce  of  the  world. 

"Such  was  the  situation  in  which  the  negotiations  for  the  supersession  of 
the  treaty  were  commenced  and  have  been  conducted,  and  we  cannot  but 
recognize  the  fair  and  friendly  spirit  in  which  the  successive  overtures  of  the 
United  States  toward  that  end  have  been  met  by  Great  Britain."  Diplo- 
matic History  of  the  Panama  Canal,  Senate  Doc,  No.  474,  63  Cong.,  2  Sess., 
53,  54-55. 

1  Art.  I  and  preamble.  Concerning  the  history  of  negotiations  between 
the  United  States  and  Great  Britain  following  the  amendments  upon  which 
the  Senate  conditioned  its  approval  of  a  convention  signed  Feb.  5,  1900,  and 
which  were  unacceptable  to  the  latter  State,  see  Diplomatic  History  of  the 
Panama  Canal,  Senate  Doc.  No.  474,  63  Cong.,  2  Sess.,  Part  I. 

"The  President  was,  however,  not  only  willing,  but  desirous,  that  the 
'general  principle'  of  neutralization  referred  to  in  the  preamble  of  this  [the 
Clayton-Bulwer]  Treaty  should  be  applicable  to  this  canal  now  intended  to 
be  built,  notwithstanding  any  change  of  sovereignty  or  of  international  rela- 

342 


THE  PANAMA  CANAL  [§  198 

or  other  powers  of  any  continent.^  On  its  part  the  United  States 
agreed  to  adopt  "as  the  basis  of  neutralization"  certain  rules,  sub- 
stantially as  embodied  in  the  convention  of  Constantinople,  of  Oc- 
tober 29, 1888.^  These  announced  (a)  that  the  canal  should  be  free 
and  open  to  the  vessels  of  commerce  and  of  war  of  all  nations  ob- 
serving the  rules,^  on  terms  of  entire  equality,  and  without  discrimi- 
nation in  respect  of  the  conditions  or  charges  of  traffic,  or  other- 
wise, and  that  those  conditions  and  charges  should  be  just  and 
equitable  ;  (b)  that  the  canal  should  never  be  blockaded,  and  that 
no  right  of  war  should  be  exercised  or  any  hostility  be  committed 
within  it,  the  United  States,  however,  to  be  at  liberty  to  maintain 
such  military  police  along  the  canal  as  might  be  necessary  to  pro- 
tect it  against  lawlessness  and  disorder ;  (c)  that  vessels  of  war  of 

tions  of  the  territory  through  which  it  should  pass.  This  'general  principle' 
of  neutralization  had  always  in  fact  been  insisted  upon  by  the  United  States, 
and  he  recognized  the  entire  justice  of  the  request  of  Great  Britain  that  if  she 
should  now  surrender  the  material  interest  which  had  been  secured  to  her  by 
the  first  Article  of  the  Clayton-Bulwer  Treaty,  which  might  result  in  the  in- 
definite future  should  the  territory  traversed  by  the  canal  undergo  a  change 
of  sovereignty,  this  'general  principle'  should  not  be  thereby  affected  or  im- 
paired." Dept.  of  State,  memorandum.  Diplomatic  Hist,  of  Panama  Canal, 
Senate  Doc.  No.  474,  63  Cong.,  2  Sess.,  66. 

Art.  IV  contained  the  agreement  that  "no  change  of  territorial  sovereignty 
orjof-the  international  relations  of  the  country  or  countries  traversed  by  the 
before-mentioned  canal  shall  affect  the  general  principle  of  neutralization  of 
or  the  obligation  of  the  High  Contracting  Parties  under  the  present  treaty." 

1  See  communication  of  Sir  Edward  Grey,  British  Foreign  Sec3\,  to  Mr. 
Bryce,  British  Ambassador  at  Washington,  Nov.  14,  1912,  in  relation  to 
Panama  Canal  toUs,  For.  Rel.  1912,  481,  482,  484.  Compare  memorandum 
of  President  Taft,  Aug.  12,  1912,  id.,  475,  476-477. 

"The  whole  theory  of  the  treaty  is  that  the  canal  is  to  be  an  entirely 
American  canal.  The  enormous  cost  of  constructing  it  is  to  be  borne  by  the 
United  States  alone.  When  constructed  it  is  to  be  exclusively  the  property 
of  the  United  States,  and  is  to  be  managed,  controlled,  and  defended  by  it. 
Under  these  circumstances,  and  considering  that  now  by  the  new  treaty  Great 
Britain  is  relieved  of  all  the  responsibility  and  burden  of  maintaining  its  neu- 
trality and  security,  it  was  thought  entirely  fair  to  omit  the  prohibition  that 
*  no  fortification  shall  be  erected  commanding  the  canal  or  the  w?ters  adja- 
cent.' "  Dept.  of  State  memorandum,  sent  by  Mr.  Hay  to  Senate  Committee 
on  Foreign  Relations,  Diplomatic  Hist,  of  Panama  Canal  above  cited,  61,  64. 

2  For  the  text  of  the  Suez  Canal  Convention,  see  Brit,  and  For.  State  Pap., 
LXXIX,  18 ;  Am.  J.,  Ill,  Supp.,  123.  With  respect  to  the  Suez  Canal  see 
Bonfils-FauchiUe,  7  ed.,  §  512,  and  hterature  there  cited ;  Oppenheim,  2  ed., 
I,  183 ;  bibliography  contained  in  Frank  M.  Anderson  and  Amos  S.  Hershey, 
Handbook  for  the  Diplomatic  History  of  Europe,  Asia,  and  Africa  (1870- 
1914),  National  Board  for  Historical  Service,  Washington,  1918,  107-108; 
Library  of  Congress,  List  of  Books  and  Periodical  Literature  Relating  to 
Interoceanic  Canals  and  Railway  Routes,  1900,  95-131. 

'  There  was  omission  of  the  words  "in  time  of  war  as  in  time  of  peace  ", 
contained  in  the  proposed  convention  of  Feb.  5,  1900,  Senate  Doc.  No.  160, 
56  Cong.,  1  Sess.  There  was  also  omission  of  a  rule  forbidding  the  erection 
of  fortifications,  and  which  had  been  contained  in  that  convention,  and  which 
was  embraced  in  the  Rules  of  the  Suez  Canal  Convention  of  1888. 

Concerning  the  repeal  of  certain  provisions  of  the  Panama  Canal  Act  of 
Aug.  24,  1912,  exempting  American  vessels  engaged  in  the  coastwise  trade 
of  the  United  States  from  the  payment  of  tolls,  see  supra,  §  54. 

343 


§  198]     GENERAL  RIGHTS  OF  PROPERTY  AND  CONTROL 

a  belligerent  should  not  revictual  nor  take  any  stores  in  the  canal 
except  so  far  as  might  be  strictly  necessary,  the  transit  of  such  ves- 
sels to  be  effected  with  the  least  possible  delay  in  accordance  with 
the  regulations  in  force,  and  with  only  such  intermission  as  might 
result  from  the  necessities  of  the  service,  and  prizes  to  be  in  all 
respects  subject  to  the  same  rules  as  vessels  of  war  of  the  belliger- 
ents ;  {d)  that  no  belligerent  should  embark  or  disembark  troops, 
munitions  of  war  or  warlike  materials  in  the  canal,  except  in  case  of 
accidental  hindrance  of  transit,  in  which  case  the  transit  should  be 
resumed  with  all  possible  despatch ;  (e)  that  the  provisions  of  the 
Article  (embracing  the  rules)  should  apply  to  waters  adjacent  to  the 
canal,  within  three  marine  miles  of  either  end,  and  that  vessels  of  a 
belligerent  should  not  remain  in  such  waters  longer  than  twenty- 
four  hours  at  any  one  time,  except  in  case  of  distress,  and  in  such 
case  depart  as  soon  as  possible,  but  that  a  vessel  of  war  of  one  bel- 
ligerent should  not  depart  within  twenty-four  hours  from  the 
departure  of  the  vessel  of  war  of  the  other  belligerent ;  (/)  that  the 
plant,  establishments,  buildings,  and  all  work  necessary  to  the  con- 
struction, maintenance,  and  operation  of  the  canal  should  be 
deemed  to  be  part  thereof,  for  the  purposes  of  the  treaty,  and  in 
time  of  war  as  in  time  of  peace,  should  enjoy  complete  immunity 
from  attack  or  injury  by  belligerents,  and  from  acts  calculated  to 
impair  their  usefulness  as  part  of  the  Canal. ^ 

By  the  treaty  with  Panama  of  November  18,  1903,  whereby  the 
United  States,  as  has  been  elsewhere  noted,-  became  the  lessee  in 
perpetuity  of  a  zone  traversing  the  territory  of  the  former  State, 
it  was  agreed  that  the  Canal  when  constructed  should  be  "  neutral 
in  perpetuity",  and  should  "be  opened  upon  the  terms  provided 
for  by  Section  I  of  Article  Three  of,  and  in  conformity  with  all 
the  stipulations  of,  the  Hay-Pauncefote  Treaty.^  It  was  declared 
that  the  Government  of  the  Republic  of  Panama  should  have  the 
right  to  transport  over  the  Canal  its  vessels  and  its  troops  and 
munitions  of  war  in  such  vessels  at  all  times  without  paying  charges 
of  any  kind.^  To  the  United  States  was  accorded  the  right  to  use 
its  police  and  its  land  and  naval  forces,  or  to  establish  fortifications 

1  See  Neutrality  Proclamation  of  President  \Mlson  with  respect  to  the 
Panama  Canal  Zone,  Nov.  13,  1914,  American  White  Book,  European  War, 
II,  18. 

2  Panama,  supra,     §  20.     See  Malloy's  Treaties,  II,  1349. 

3  Art.  XVIII. 

*  Art.  XIX.  It  was  here  also  provided  that  the  exemption  was  to  be  ex- 
tended to  the  auxiliary  railway  for  the  transportation  of  persons  in  the  service 
of  the  RepubUc  of  Panama,  or  of  the  police  force  charged  with  the  preserv^a- 
tion  of  pubUc  order  outside  of  the  zone,  as  well  as  to  their  baggage,  muni- 
tions of  war  and  supplies. 

344 


THE  PANAMA  CANAL  [§  198 

for  the  protection  of  the  Canal  or  of  vessels  making  use  of  it,  or  of 
the  railways  or  auxiliary  works  thereof.^ 

The  treaties  with  Great  Britain  and  Panama  did  not  apparently 
contemplate  the  impressment  upon  the  Canal  of  a  status  of  neu- 
tralization. There  was  an  absence  of  any  collective  guaranty  ap- 
propriate to  such  an  end,  and  no  design  of  uniting  interested  mari- 
time States  in  such  an  undertaking.  The  work  of  maintenance 
and  defense  was  left  to  a  single  power.  No  obligation  was  assumed 
by  the  United  States  not  to  bar  the  use  of  the  waterway  by  an 
enemy,  and  not  to  protect  it  by  force.  No  plan  was  devised  to 
remove  from  an  enemy  (except  possibly  Great  Britain  or  Panama, 
should  either  of  those  States  unhappily  wage  war  against  the  United 
States)^  the  right  to  attack  the  Canal  with  a  view  to  its  seizure 
for  strategic  or  other  purposes.^  Nor  was  the  United  States  pre- 
vented from  permitting,  when  a  neutral,  such  uses  of  the  waterway 
by  belligerent  maritime  States  as  it  might  lawfully  accord  them 
in  its  own  ports.^ 

1  Art.  XXIII. 

2  "In  the  event  of  the  remote  and  well-nigh  impossible  contingency  of  a 
war  between  the  United  States  and  Great  Britain,  each  party  is  remitted 
to  its  natural  right  of  self-defense,  but,  even  in  that  emergency,  by  force  of  the 
sixth  clause  of  Article  III  —  which  is  the  only  clause  in  the  treaty  by  its  terms 
expressly  applying  in  time  of  war  as  in  time  of  peace  —  the  plant,  establish- 
ment, buildings,  and  all  works  necessary  to  the  construction,  maintenance, 
and  operation  of  the  canal  shall  be  deemed  to  be  part  thereof,  and  shall  en- 
joy complete  immunity  from  attack  or  injury  by  the  enemy,  and  from  acts 
calculated  to  impair  their  usefulness  as  part  of  the  canal."  Mr.  Haj-,  Secy, 
of  State,  to  Mr.  CuUom,  Chairman  of  Senate  Committee  on  Foreign  Rela- 
tions, personal,  Dec.  12,  1901,  Diplomatic  Hist,  of  Panama  Canal,  above 
cited,  53,  59. 

^  The  question  presents  itself,  however,  whether  the  long-continued  use 
of  the  canal  by  the  public  as  well  as  private  vessels  of  a  foreign  State,  under 
the  rules  of  the  treatj-  of  1901,  would  not  impose  upon  it  a  duty,  when  at  war 
with  the  United  States,  such  as  would  be  imposed  on  Great  Britain  were  it 
the  enemy  of  the  United  States.  It  might  be  urged  A\'ith  force  that  the  ac- 
ceptance and  use  of  privileges  of  transit,  which  the  United  States  was  not 
obliged  itself  indiscriminately  to  accord,  created  a  corresponding  duty  not 
to  commit  acts  which  in  time  of  war  the  rules  expressly  forbade. 

*Chas.  H.  Stockton,  Outhnes,  144. 

"The  latter  word  [neutralisation]  is  frequently  used  in  reference  to  the  Suez 
Canal ;  but,  strictly  speaking,  it  is  not  correct,  inasmuch  as  the  passage  of 
belligerent  warships  is  permitted,  whilst  in  neutralised  territorj^  the  passage 
of  belligerents'  forces  is  prohibited.  Lord  Cromer,  speaking  of  the  term 
'neutralisation'  as  applied  to  tiie  Suez  Canal,  cited  Lord  Pauncefote  as  say- 
ing that  it  'had  reference  onl>  to  the  neutrality  which  attaches  by  inter- 
national law  to  the  territorial  waters  of  a  neutral  State,  in  which  a  right  of 
innocent  passage  for  belligerent  vessels  exists,  but  no  right  to  commit  any  act 
of  hostility.'  "  Phillipson  and  Buxton,  Question  of  the  Bosphorus  and  Dar- 
danelles, London,  1917,  239,  citing  Earl  of  Cromer,  Modern  Egypt,  London, 
1908,  II,  384.  It  may  be  observed  that  Lord  Cromer  in  the  course  of  his  state- 
ment referred  to  Lord  Pauncefote  as  "an  excellent  authority  on  this  subject." 
Dr.  Her.shey,  in  his  Es.sentials  of  International  Law,  1912,  p.  211,  Note  38, 
also  adverted  to  Lord  Cromer's  statement. 

Concerning  the  right  of  the  United  States  to  fortify  the  Canal,  see  George 

345 


§  198]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

The  permanence  of  the  isolation  of  the  Canal  from  scenes  of  hos- 
tility, to  the  extent  of  the  requirements  of  the  Hay-Pauncefote 
Treaty,  thus  appears  to  depend  technically  upon  the  military  and 
naval  power  of  the  United  States.  To  this,  however,  must  be 
added  the  vast  influence  of  the  moral  (and  possibly  naval)  support 
of  Great  Britain  which,  although  unburdened  by  a  legal  obligation, 
must  always  be  regarded  as  constituting  in  fact  a  co-guarantor. 


The  Supremacy  of  the  Territorial  Sovereign  Over  the 
National  Domain 

(1) 
§  199.   In  General. 

States  are  agreed  that  within  the  national  domain  the  will  of 
the  territorial  sovereign  is  supreme.  That  will  must,  therefore, 
be  exclusive,  opposing  the  assertion  of  any  other,  and  excluding 
the  lawfulness  of  obedience  to  the  commands  of  such  other.  There 
can  be  no  conflict  of  right  in  the  matter.^ 

In  the  application  of  this  principle  international  differences 
frequently  arise  in  cases  where  it  is  believed  that  the  territorial 
sovereign  has  abused  its  rights  as  such,  or  wdiere  it  is  contended 
conversely,  that  within  the  national  domain  some  public  foreign 
agency  has  committed  acts  in  derogation  of  the  rights  of  that 
sovereign.  Controversies  also  arise  as  to  the  extent  to  which  a 
State  has,  for  any  reason,  consented  to  relax  its  right  of  exclusive 
control  in  favor  of  a  foreign  power.  It  will  be  observed  that  in 
all  of  these  situations  the  particular  problem  concerns  the  relation 
of  the  territorial  sovereign  to  a  foreign  State  or  its  nationals  by 
reason  of  conduct  or  occurrences  taking  place  w^ithin  the  domain 
of  the  former.  This  is  true  whether  the  acts  complained  of  have 
been  committed  by  that  sovereign  or  by  some  foreign  individual 
or  agency  in  opposition  to  its  will. 

B.  Davis,  ''Fortification  at  Panama",  Am.  J.,  Ill,  885;  Peter  C.  Hains, 
"Neutralization  of  the  Panama  Canal",  id.,  Ill,  354;  H.  S.  Knapp,  "The 
Real  Status  of  the  Panama  Canal  ",  id.,  IV.  314;  Crammond  Kennedy,  "The 
Canal  Fortifications  and  the  Treaty  ",  id.,  V,  620;  Richard  Olney,  "Fortifica- 
tion of  the  Panama  Canal  ",  id.,  V,  298;  Eugene  Wambaugh,  "The  Right  to 
Fortify  the  Panama  Canal",  id.,  V,  615. 

1  Declares  Hall:  "And  it  being  a  necessary  result  of  independence  that 
the  will  of  the  state  shall  be  exclusive  over  its  territory,  it  also  asserts  authority 
as  a  general  rule  over  all  persons  and  things,  and  decides  what  acts  shall  or  shall 
not  be  done,  within  its  dominion."  Higgins'  7  ed.,  p.  49.  See,  also,  Beale's 
Cases  on  Conflict  of  Laws,  III,  Summary,  §  23. 

See  Rights  of  Jurisdiction,  In  General,  infra,  §  218. 

346 


GENERALLY    ILLUSTRATIVE    INSTANCES         [§  200 

(2) 
Acts  in  Derogation  of  the  Supremacy  of  the  Territorial  Sovereign 

(a) 

§  200.    Generally  Illustrative  Instances. 

Any  act  committed  within  the  territory  of  a  State  in  obedience 
to  the  command  of  a  foreign  power  and  contrary  to  the  will  of  the 
territorial  sovereign  marks  contempt  for  its  supremacy  therein.* 
A  few  instances  may  be  noted  as  illustrative. 

The  operations  or  movements  of  a  foreign  military  or  naval 
force  within  the  territory  of  a  State  are  of  such  a  character  and 
constitute  a  serious  invasion  of  its  rights.  The  United  States 
has  always  so  regarded  the  acts  of  such  foreign  agencies  within 
its  own  domain,^  and  has  likewise  deplored  their  commission  under 
normal  circumstances  by  its  own  forces  abroad.^    For  the  same 

1  Mr.  Jefferson,  Secy,  of  State,  to  Mr.  Ternant,  French  Mini-ster,  May  15, 
1793,  denouncing  as  contrary  to  the  law  of  nations  the  condemnation  by  the 
French  Consul  at  Charleston  of  a  British  vessel  captured  by  a  French  frigate. 
Am.  State  Pap.,  For.  Rel.,  I,  147-148.  See,  also,  The  Apollon,  9  Wheat. 
362. 

2  Mr.  Clay,  Secy,  of  State,  to  Mr.  Vaughan,  British  Minister,  Feb.  18, 
1828,  MS.  Notes  For.  Leg.,  Ill,  430,  Moore,  Dig.,  II,  4;  Mr.  Buchanan,  Secy, 
of  State,  to  Mr.  Wise,  Minister  to  Brazil,  Sept.  27,  1845,  MS.  Inst.  Brazil, 
XV,  119,  Moore,  Dig.,  II,  4;  Mr.  Forsvth,  Secy,  of  State,  to  Mr.  La  Branche, 
Charge  d' Affaires  to  Texas,  Jan.  8,  1839,  MS.  Inst.  Texas,  I,  15,  Moore,  Dig., 
II,  363;  Mr.  Wilson,  Acting  Secv.  of  State,  to  the  Mexican  Ambassador, 
March  9,  1911,  For.  Rel.  1911,  419;  Mr.  Knox,  Secy,  of  State,  to  the  Mexi- 
can Charge  d'Affaires,  April  10,  1911,  id.,  453. 

"  Indeed,  as  you  know,  I  have  already  declined,  without  Mexican  consent, 
to  order  a  troop  of  Cavalry  to  protect  the  breakwater  we  are  constructing 
just  across  the  border  in  Mexico  at  the  mouth  of  the  Colorado  River  to  save 
the  Imperial  Valley,  although  the  insurrectos  had  scattered  the  Mexican  troops 
and  were  taking  our  horses  and  supplies  and  frightening  our  workmen  away." 
President  Taft,  Annual  Message,  Dec.  7,  1911,  id.,  XII.  President  Taft  an- 
nounced the  purpose,  however,  to  be  in  such  a  position  that  when  danger  to 
American  lives  and  property  in  Mexico  threatened,  and  the  existing  govern- 
ment was  rendered  helpless  by  the  insurrection,  he  could  "promptly  execute 
congressional  orders  to  protect  them,  with  effect." 

^  Mr.  Monroe,  Secv.  of  State,  to  the  Chevalier  de  Onis,  Spanish  Minister, 
Feb.  7,  1816,  MS.  Notes  to  For.  Leg.,  II,  128,  Moore,  Dig.,  II,  362;  Mr.  Sew- 
ard, Secv.  of  State,  to  Mr.  Welles,  Secy,  of  the  Navy,  Aug.  4,  1862,  58  MS. 
Dom.  Let.  15,  Moore,  Dig.,  II,  363. 

Concerning  certain  general  orders  in  1864,  of  Major-General  Dix,  U.  S.  A., 
relative  to  the  pursuit  into  Canada  of  a  band  of  persons  which  had  raided  St. 
Albans,  Vermont,  see  Moore,  Dig.,  II,  367-368. 

In  cases  of  the  accidental  killing  or  injury  by  public  vessels  of  the  United 
States  within  the  territorial  waters  of  foreign  States,  of  citizens  of  such  States, 
ample  indemnities  have  been  paid  and  full  apologies  expressed.  See  Presi- 
dent Jackson,  special  message  to  Congress,  June  18,  1834,  H.  Ex.  Doc.  492, 
23  Cong.,  1  Sess.,  Moore,  Dig.,  II,  369.  See,  also,  For.  Rel.  1889,  547-549, 
relative  to  consequences  of  target  practice  in  1887,  of  the  U.  S.  S.  Omaha, 
while  in  Japanese  waters,  Moore,  Dig.,  II,  369 

347 


§  200]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

reason,  the  pursuit  and  arrest  of  deserters  by  foreign  expeditions 
without  the  consent  of  the  local  authorities  is  necessaril}-  looked, 
upon  with  disapproval.^ 

Foreign  civil  officials  are  bound  to  respect  the  same  principle. 
Thus  they  cannot  lawfully,  without  the  consent  of  the  territorial 
sovereign,  make  an  arrest  within  its  domain ,2  or  rescue  any  one 
from  the  custody  of  its  oflScials,^  or  take  to,  or  detain  therein,  any 
person  however  lawfully  arrested  within  the  territory  of  their 
own  State .^  Private  citizens  are  under  the  same  obligations  and 
cannot,  for  example,  lawfully  enter  and  take  from  the  territory 
of  a  foreign  State,  without  its  consent,  the  person  of  any  individual 
found  therein.^ 

The  exercise  of  certain  administrative  functions  by  foreign  civil 
agents  is  regarded  as  likewise  inconsistent  with  the  lodgment 
of  supreme  control  in  the  territorial  sovereign.  The  practice  of 
Russian  consuls  in  the  United  States  of  subjecting  to  certain  in- 
vidious discriminations  American  citizens  of  Jewish  faith,  by 
refusing  to  vise  their  passports,  was  described  by  President  Cleve- 
land in  1895,  as  "an  obnoxious  invasion  of  our  territorial  juris- 
diction." ^  It  may  be  noted  that  Germany,  in  1895,  regarded  with 
disapproval  the  authorization  by  the  United  States  of  its  own  offi- 
cials to  inspect  or  order  the  disinfection  in  German  ports  of  foreign 
vessels  bound  for  the  United  States.^ 

1  Mr.  Monroe,  Secy,  of  State,  to  Mr.  Baker,  Dec.  6,  1815,  MS.  Notes  For. 
Leg,  II  113,  Moore,  Dig.,  II,  362;  Mr.  Seward,  Secy,  of  State,  to  Mr. 
Stanton,  Secy,  of  War,  April  15,  1853,  60  MS.  Dom.  Let.  231,  Moore,  Dig., 
II,  370 ;  Case  of  incursion  in  1888,  from  Mexico  into  Texas  of  armed  force  to 
arrest  Antanicio  Luis,  an  alleged  deserter,  described  in  Moore,  Dig.,  II,  371, 
and  documents  there  cited. 

2  Mr.  Bayard,  Secv.  of  State,  to  Mr.  Manning,  Minister  to  Mexico,  Feb. 
26,  1887,  MS.  Inst.  Mexico,  XXI,  646,  Moore,  Dig.,  II,  373;  Nogales  Case, 
1893,  For.  Rel.  1893,  457,  471,  id.,  1896,  439-454,  Moore,  Dig.,  II,  380;  Mr. 
Hay,  Secy,  of  State,  to  Sir  Julian  Fauncefote,  British  Ambassador,  Jan.  21, 
1899,  MS.  Notes  to  British  Legation,  XXIV,  427,  Moore,  Dig.,  II,  381.  See, 
also,  Mr.  Wilson,  Acting  Secy,  of  State,  to  the  Mexican  Ambassador  at 
Washington,  March  14,  1911,  concerning  the  cases  of  Edward  M.  Blatt 
and  Lawrence  F.  Converse,  For.  Rel.  1911,  606. 

3  Nogales  Case,  1887,  described  in  Moore,  Dig.,  II,  376-379,  and  documents 
there  cited  from  For.  Rel.  1887  and  1888,  part.  II. 

*  Case  of  Peter  Martin,  For.  Rel.  1877,  266,  Brit,  and  For.  State  Pap., 
LXVIII,  1223,  Moore,  Dig.,  II,  371-373. 

6  Case  of  Madeline  His,  For.  Rel.  1894,  646-675,  Moore,  Dig.,  II,  384-389, 
and  documents  there  cited. 

«  President  Cleveland,  Annual  Message,  Dec.  2,  1895,  For.  Rel.  1895,  I, 
xxxii,  Moore,  Dig.,  II,  10.  See,  also,  correspondence  between  the  United 
States  and  Russia,  1893,  For.  Rel.  1893,  547  and  548 ;  and  in  1895,  For.  Rel. 
1895,  II,  1056-1074,  especially  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Breck- 
inridge, Minister  to  Russia,  Aug.  22,  1895,  For.  Rel.  1895,  II,  1067.  The  more 
important  of  the  foregoing  documents  are  contained  in  Moore,  Dig.,  II,  8-13. 

^  Declared  Mr.  Gresham,  Secy,  of  State,  to  Baron  Saurma,  German  Am- 

348 


THE  LANDING  OF  FOREIGN  FORCES  [§  2C2 

(b) 

§  201.   The  Passage  of  Foreign  Forces. 

When,  in  times  of  peace,  a  passage  through  the  territory  of  a 
particular  State  is  sought  for  reasons  of  convenience  in  behalf  of 
a  foreign  military  force,  the  permission  of  the  territorial  sovereign 
is  requested  and  oftentimes  granted.^  The  presence  of  such  forces 
at  international  exhibitions  or  on  social  occasions  within  American 
territory  has  been  a  frequent  occurrence.^  Consent  by  the  United 
States  to  the  entering  of  a  foreign  force  into  the  territory  of  any 
State  of  the  Union  is  commonly  conditioned  upon  that  also  of  the 
particular  Commonwealth  concerned.^ 

(c) 

§  202.   The  Landing  of  Foreign  Forces. 

Respect  for  the  inviolability  of  the  territory  of  a  State  rests 
on  the  theory  that  it  possesses  the  power  and  will  to  exercise  con- 
trol therein,  and  to  a  degree  sufficient  to  assure  the  administration 
of  justice,  in  albroad  sense,  throughout  the  national  domain.  Even 
countries  not  dealt  with  as  full  members  of  the  family  of  nations, 

bassador,  Jan.  26,  1895:  "This  Government  does  not  claim  that  under  any 
treaty  or  the  rules  of  international  law  it  can  authorize  its  officers  to  inspect 
foreign  vessels  or  order  their  disinfection  in  German  ports,  or  to  administer 
oaths  to  officers  of  foreign  ships  within  the  jurisdiction  of  the  German  Empire." 
For.  Rel.  1895,  I,  513,  514;   Moore,  Dig.,  II,  13-14. 

See,  also.  For.  Rel.  1904,  519-521,  concerning  the  unwillingness  of  the  Neth- 
erlands to  permit  the  United  States  to  station  officers  at  certain  ports  to  con- 
duct medical  examinations  under  the  Act  of  Congress  of  March  3,  1903.  Con- 
cerning the  attitude  of  Austria-Hungary,  id.,  1904,  92-94. 

1  See,  for  example,  Mr.  Seward,  Secy,  of  State,  to  Governor  Washburne, 
of  Maine,  Jan.  17,  1862,  56  Dom.  Let.  211,  Moore,  Dig.,  II,  390;  Mr.  Cadwal- 
ader,  Acting  Secy,  of  State,  to  Mr.  Cameron,  Secy,  of  War,  Oct.  20,  1876, 
115  MS.  Dom.  Let.  502,  Moore,  Dig.,  II,  392;  Mr.  Bayard,  Secy,  of  State, 
to  the  Secy,  of  War,  April  16,  1885,  155  MS.  Dom.  Let.  120,  Moore,  Dig., 
II,  393;  correspondence  in  For.  Rel.  1897,  325-326;  id.,  1898,  358-363, 
relative  to  passage  of  Alaskan  Relief  Expedition  through  Canadian  terri- 
tory, Moore,  Dig.,  II,  393-395. 

See,  in  this  connection,  refusal  of  the  United  States  while  a  neutral,  to  per- 
mit, in  1915,  the  passage  of  certain  Canadian  troops  through  the  State  of 
Maine.     Correspondence  in  American  White  Book,  European  War,  IV,  81. 

2  Mr.  Foster,  Secy,  of  State,  to  Mr.  Patenotre,  French  Minister,  Dec.  17, 
1892,  MS.  Notes  to  France,  X,  263,  Moore,  Dig.,  II,  395. 

'  Mr.  Seward,  Secy,  of  State,  to  Governor  Washburne,  of  Maine,  Jan.  17, 
1862,  56  Dom.  Let." 211,  Moore,  Dig.,  II,  .390;  Mr.  Foster,  Secy,  of  State, 
to  the  Governor  of  Illinois,  Julv  5,  1892,  187  MS.  Dom.  Let.  142,  Moore, 
Dig.,  II,  395;  Mr.  Hill,  Asst.  Secv.  of  State,  to  Mr.  Buchanan,  President  of 
the  Pan-American  Exposition,  Jan.  14,  1901,  2.50,  MS.  Dom.  Let.  217,  Moore, 
Dig.,  II,  396;  Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassador,  June 
7,  1911,  For.  Rel.  1911,  503. 

Concerning  the  jurisdiction  of  a  State  over  foreign  forces  permitted  to 
enter  its  territory,  infra,  §  247. 

349 


§  202]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

are  held  accountable  for  the  possession  of  such  power  and  dis- 
position. When  States  are  not  found  wanting  in  this  regard,  the 
United  States  is  not  disposed  to  sanction  the  use  within  their 
borders  of  its  own  public  forces  for  the  advancement  or  benefit  of 
American  interests.^  When,  however,  in  any  country,  the  safety 
of  foreigners  in  their  persons  and  property  is  jeopardized  by  the 
impotence  or  indisposition  of  the  territorial  sovereign  to  afford 
adequate  protection,  the  landing  or  entrance  of  a  foreign  public 
force  of  the  State  to  which  such  nationals  belong,  is  to  be  antici- 
pated.^ Justification  is  to  be  found  in  the  circumstance  that  such 
conduct  is  designed  primarily  to  assure  the  performance  of  certain 
functions  of  government,  the  continued  non-performance  of  which 
would  produce  an  irreparable  injury  to  persons  entitled  to  demand 
as  of  right  protection  from  the  local  authorities.^ 

The  United  States  has  not  hesitated  to  act  upon  this  principle.^ 
A  notable  instance  occurred  in  China  in  1900.  That  country  was 
then  at  peace  with  the  several  foreign  powers,  including  the  United 
States.     In  the  Northern  Provinces  of  the  Empire,  in  the  course 

1  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Sill,  Minister  to  Korea,  July  8, 
1895,  MS.  Inst.  Korea,  I,  537,  Moore,  Dig.,  II,  401 ;  Mr.  Hay,  Secy,  of  State, 
to  the  Chinese  Minister,  June  22,  1900,  For.  Rel.  1900,  274,  Moore,  Dig.,  V, 
479,  in  reply  to  the  memorandum  of  the  Chinese  Minister  of  June  22,  1900, 
For.  Rel.  1900,  273. 

2  It  has  been  observed  that  on  grounds  of  self-defense,  and  with  no  po- 
litical design  foreign  forces  may,  under  certain  circumstances,  not  unlaw- 
fully penetrate  the  territory  of  a  State.  Certain  Non-Political  Acts  of  Self- 
Defense,  supra,  §§  65-68.  The  situations  here  considered  are  those  which 
are  not  only  non-political  and  not  savoring  of  intervention,  but  which  are  also 
not  illustrative  of  attempts  to  defend  the  safety  of  the  territory  of  a  State 
from  foreign  activities  injurious  to  it.  The  instances  described  in  the  text 
are  rather  cases  where  the  object  of  the  foreign  force  entering  the  national  do- 
main is  to  safeguard  persons  or  property  found  or  established  therein.  Thus 
the  forcible  according  of  protection  is  to  defend  persons  or  things  regarded  as 
foreign  to  the  territorial  sovereign,  but  which  have  for  the  time  being  no 
immediate  connection  with  the  territory  of  the  State  whose  force  is  employed 
to  shield  them.  The  activities  which  are  observed  illustrate  the  strength  of 
the  connection  between  a  State  and  its  nationals  and  their  property  in  a 
foreign  land,  when  abnormal  conditions  prevail  therein. 

'  See  memorandum  on  the  Right  to  Protect  Citizens  in  Foreign  Countries 
by  Landing  Forces,  by  J.  R.  Clark,  Jr.,  Solicitor  of  Department  of  State,  1912; 
especially  22-23,  and  30-31,  also  Appendix  giving  chronological  list  of  occa- 
sions on  which  the  Government  of  the  United  States  had  taken  action  by 
force  for  the  protection  of  American  interests;  including  certain  instances 
in  which  similar  action  had  been  taken  by  other  governments  in  behalf  of  their 
nationals. 

*  Mr.  Toucey,  Secy,  of  Navy,  to  Captain  Jarvis,  U.  S.  S.  Savannah,  March 
13,  1860,  S.  Ex.  Doc.  29,  36  Cong.,  1  Sess.,  Moore,  Dig.,  II,  400;  President 
McKinley,  Annual  Message,  Dec.  5,  1899,  For.  Rel.  1899,  XVIII,  Moore,  Dig., 
II,  401;  Mr.  Hill,  Acting  Secy,  of  State  to  the  Secy,  of  the  Navy,  Sept.  11, 
1900,  247  MS.  Dom.  Let.  597,  Moore,  Dig.,  II,  401.  Compare  Mr.  Hay,  Secy, 
of  State,  to  Mr.  Merry,  Minister  to  Central  America,  March  3,  1899,  For. 
Rel.  1899,  554. 

350 


THE  LANDING  OF  FOREIGN  FORCES  [§  202 

of  the  so-called  "Boxer"  movement,  there  occurred  unprecedented 
disturbances  against  foreign  life  and  property.  As  early  as  May  26, 
the  American  ]\Iinister  had  been  authorized  to  arrange  with  the 
American  Admiral  for  legation  guards.  On  May  31,  some  350 
guards  —  iVmerican,  English,  Russian,  French,  Japanese  and 
Italian  —  arrived  at  Peking.  On  June  11,  Mr.  Sugiyama,  Chan- 
cellor of  the  Japanese  Legation,  was  killed  by  regular  Chinese 
troops.  On  June  20,  Baron  von  Ketteler,  the  German  Minister, 
was  murdered  by  soldiers  of  the  Imperial  Chinese  Army  in  pur- 
suance of  orders  of  their  superiors.  From  that  day  until  August 
14,  the  several  foreign  legations  were  constantly  attacked  and  be- 
sieged by  forces  comprising  in  part  regular  troops,  under  orders 
from  the  Imperial  authority.  In  several  provinces  foreigners  were 
murdered,  tortured  or  attacked.  In  Peking  the  foreign  cemeteries 
were  desecrated,  in  some  cases  the  graves  being  opened  and  the 
remains  scattered  abroad.  An  international  expedition  composed 
of  troops  of  the  several  Powers  was  duly  sent  to  raise  the  siege  of 
that  city.  This  was  accomplished  after  overcoming  the  constant 
resistance  of  the  Chinese  forces.^ 

For  numerous  other  kindred  purposes  American  forces  have 
been  landed  on  foreign  territory  which,  in  most  instances,  has  been 
that  of  a  country  not  familiar  with  European  civilization,  and  not, 

1  President  McKinley,  Annual  Message,  Dec.  3,  1900,  For.  Rel.  1900, 
XI-XVI;  edicts  and  decrees  of  the  Empress  Dowager,  id.,  1900,  85,  168, 
169,  170,  172;  communications  of  Mr.  Conger,  American  Minister,  to  Mr. 
Hay,  Secy,  of  State,  id.,  1900,  144,  151,  159,  161-169,  190;  joint  note  of  the 
Allied  Powers,  Dec.  22,  1900,  id.,  244;  id.,  132.  An  abstract  of  the  more 
important  American  documents  relative  to  the  disturbances  in  China  during 
the  "Boxer"  movement  is  contained  in  Moore,  Dig.,  V,  476-493. 

The  position  of  the  United  States  in  acting  concurrently  with  the  other 
Powers  was  set  forth  in  a  notable  circular  despatch  of  Mr.  Hay,  Secy,  of  State, 
July  3,  1900,  in  which  he  said  in  part :  "The  purpose  of  the  President  is,  as  it 
has  been  heretofore,  to  act  concurrently  with  the  other  powers ;  first,  in  open- 
ing up  communication  with  Peking  and  rescuing  the  American  officials,  mis- 
sionaries, and  other  Americans  who  are  in  danger;  secondly,  in  affording  all 
possible  protection  everywhere  in  China  to  American  life  and  property; 
thirdly,  in  guarding  and  protecting  all  legitimate  American  interests;  and, 
fourthly,  in  aiding  to  prevent  a  spread  of  the  disorders  to  the  other  provinces 
of  the  Empire  and  a  recurrence  of  such  disasters.  It  is,  of  course,  too  early  to 
forecast  the  means  of  attaining  this  last  result ;  but  the  policy  of  the  gov- 
ernment of  the  United  States  is  to  seek  a  solution  which  may  bring  about 
permanent  safety  and  peace  to  China,  preserve  Chinese  territorial  and  ad- 
ministrative entity,  protect  all  rights  guaranteed  to  friendly  powers  by  treaty 
and  international  law,  and  safeguard  for  the  world  the  principle  of  equal  and 
impartial  trade  with  all  parts  of  the  Chinese  Empire."  For.  Rel.  1900,  299, 
Moore,  Dig.,  V,  481,  482. 

The  text  of  the  final  protocol  of  Sept.  7,  1901,  between  the  Allied  Powers, 
on  the  one  hand,  and  China,  on  the  other,  is  contained  in  Malloy's  Treaties, 
II,  2006.  See  Intervention,  The  Conduct  of  the  United  States,  supra,  §  83; 
William  Roscoe  Thayer,  Life  and  Letters  of  John  Hay,  Boston,  1915,  II, 
Chap.  XXVI. 

351 


§  202]     GENERAL    RIGHTS   OF   PROPERTY   AND    CONTROL 

at  the  time,  recognized  for  all  purposes  as  a  member  of  the  family 
of  nations.  In  such  cases  the  object  has  occasionally  been  more 
than  merely  to  accord  simple  protection  in  a  disturbed  area,  and 
has  involved  the  infliction  of  penalties  upon  persons  responsible 
for  the  injury  or  death  of  American  residents.^  Revolutionary  con- 
flicts in  territories  of  countries  of  a  higher  order  and  recognized 
as  States,  have  at  times  given  rise  to  conditions  calling  for  the 
landing  of  forces,  for  the  protection  of  American  interests.^  It 
seems  to  require  emphasis  that  such  use  of  those  forces  has  not, 
in  a  variety  of  cases,  possessed  political  significance,  and  that  the 
propriety  of  their  employment  has  been  attributable  to  the  con- 
sequences otherwise  to  be  anticipated  from  the  continued  delin- 
quency of  the  territorial  sovereign. 

(3) 

The  Exercise  by  a  State  of  Certain  Rights  as  Sovereign  within 
Its  Own  Domain 

(a) 

§  203.   The  Private  Ownership  and  Control  of  Property. 

A  State  enjoys  an  exclusive  right  to  regulate  matters  pertain- 
ing to  the  ownership  of  property  of  every  kind  which  may  be  said 
to  belong  within  its  territory.  Thus  it  may  determine  not  only  the 
processes  by  which  title  may  be  acquired,  retained  or  transferred,^ 
but  also  what  individuals  are  to  be  permitted  to  enjoy  privileges 
of  ownership.^ 

A  State  may  not  unreasonably  forbid  aliens,  espyecially  if  they 
reside  outside  of  its  domain,  to  acquire  or  retain  property  belong- 

1  See,  for  example,  punishment  of  natives  in  Formosa,  in  1867,  by  a  naval 
force  under  Commander  G.  C.  Belknap,  U.  S.  N.,  Report  of  Secy-  of  the 
Navy,  1867,  7-8,  and  noted  in  Memorandum  of  J.  R.  Clark,  Jr.,  Solicitor  of 
Department  of  State,  1912,  p.  58. 

2  See,  for  example,  cases  of  the  landing  of  American  forces  to  protect  Ameri- 
can interests  in  Nicaragua  in  1910,  For.  Rel.  1910,  749-754 ;  also  case  of  the 
landing  of  such  forces  in  Honduras,  1910-1911,  as  set  forth  in  Appendix  to 
Memorandum  of  J.  R.  Clark,  Jr.,  Solicitor  of  Department  of  State,  1912, 
69-70,  with  documents  there  quoted.  The  situation  is  somewhat  meagerly 
set  forth  in  For.  Rel.  1911,  295-305. 

3  "It  is  an  established  principle  of  international  law  that  every  State  has 
the  right  to  regulate  the  conditions  upon  which  property  within  its  territory, 
whether  real  or  personal,  shall  be  held  and  transmitted."  Mr.  Gresham, 
Secy,  of  State,  to  Mr.  Huxton,  Dec.  20,  1893,  194  MS.  Dom.  Let.  598;  Moore, 
Dig.,  II,  33. 

*  Declared  Taney,  C.  J.,  in  the  course  of  the  opinion  of  the  Court  in  the 
case  of  Mager  v.  Grima,  8  How.  490,  493  :  "Every  state  or  nation  may  un- 
questionably refuse  to  allow  an  alien  to  take  either  real  or  personal  property, 
situated  within  its  limits,  either  as  heir  or  legatee,  and  may,  if  it  thinks  proper, 

352 


ALIEN   OWNERSHIP  OF  PROPERTY  [§  203 

ing  within  its  territory,  and  whether  movable  or  immovable,^  At 
the  present  time  States  do  not  appear  to  be  disposed  to  prevent 
the  acquisition  of  or  succession  to  movable  property  by  ahens. 
Numerous  treaties  of  the  United  States  have  provided  for  the  en- 
joyment by  such  persons  of  that  privilege.^ 

direct  that  property  so  descending  or  bequeathed  shall  belong  to  the  state. 
In  many  of  the  States  of  this  Union  at  this  day,  real  property  devised  to  an 
alien  is  Hable  to  escheat." 

"It  is  a  fundamental  principle  of  the  law  of  nations  that  not  only  may 
rights  conferred  upon  citizens  be  reserved  from  non-resident  aliens,  but  even 
that  aliens  permanently  residing  in  the  country  may  be  denied  rights  which 
are  given  citizens ;  and  this  rule  applies  not  only  to  civil  rights,  but  to  prop- 
erty rights  as  well.  In  this  connection  it  is  necessary  to  do  more  than  cite, 
as  to  civil  rights,  the  all  but  universal  and  the  unquestioned  practice  of  denying 
to  aliens  the  right  of  suffrage ;  and  as  to  property  rights,  the  very  general 
denial  to  aliens  of  the  right  to  hold  real  property  and  to  have  the  same  descend 
in  the  same  manner  in  which  real  property  may  be  held  by  and  may  descend 
to  citizens."  Mr.  Adee,  Acting  Secv.  of  State,  to  the  Italian  Ambassador,  at 
Washington,  No.  891,.Oct.  1,  1910,  For.  Rel.  1910,  664,  671. 

^  Droit  d'aubaine.  Declares  Wheaton :  "The  municipal  laws  of  all  Euro- 
pean countries  formerly  prohibited  aliens  from  holding  real  property  within 
the  territory  of  the  State.  During  the  prevalence  of  the  feudal  system,  the 
acquisition  of  property  in  land  involved  the  notion  of  allegiance  to  the  prince 
within  .^vhose  dominions  it  lay,  which  might  be  inconsistent  with  that  which 
the  proprietor  owed  to  his  native  sovereign.  It  was  also  during  the  same  rude 
ages  that  the  jus  alhinagii  or  droit  d'oubaine  was  established ;  by  which  all 
the  property  of  a  deceased  foreigner  (movable  and  immovable)  was  confiscated 
to  the  use  of  the  State,  to  the  exclusion  of  his  heirs,  whether  claiming  ab  in- 
testato,  or  under  a  will  of  the  decedent.  In  the  progress  of  civilization,  this 
barbarous  and  inhospitable  usage  has  been,  by  degrees,  almost  entirely  abol- 
ished. This  improvement  has  been  accomplished  either  by  municipal  regu- 
lations, or  by  international  compacts  founded  upon  the  basis  of  reciprocity. 
Previous  to  the  French  Revolution  of  1789,  the  droit  d'aubaine  had  been  either 
abolished  or  modified,  by  treaties  between  France  and  other  States,  and  it  was 
entirely  abrogated  by  a  decree  of  the  constituent  Assembly,  in  1791,  with 
respect  to  all  nations,  without  exception  and  without  regard  to  reciprocity. 
This  gratuitous  concession  was  retracted,  and  the  subject  placed  on  its  orig- 
inal footing  of  reciprocity  by  the  Code  Napoleon,  in  1803 ;  but  this  part  of 
the  Civil  Code  was  again  repealed  by  the  Ordinance  of  the  14th  July,  1819, 
admitting  foreigners  to  the  right  of  possessing  both  real  and  personal  prop- 
erty in  France,  and  of  taking  by  succession  ab  intestato,  or  by  will,  in  the  same 
manner  with  native  subjects. 

"The  analogous  usage  of  the  droit  de  detraction,  or  droit  de  retraite  (jus  de- 
tractHs)  by  which  a  tax  was  levied  upon  the  removal  from  one  State  to  an- 
other of  property  acquired  by  succession  or  testamentary  disposition,  has 
also  been  reciprocally  abolished  in  most  civilized  countries."  Dana's  8  ed., 
138-139. 

By  Art.  XI  of  the  treaty  of  amity  and  commerce  between  the  United 
States  and  France  of  Feb.  6,  1778,  Malloy's  Treaties,  I,  471,  there  was  mutual 
abolition  of  the  droit  d'aubaine,  and  also  of  the  droit  detraction. 

«  For  example,  Art.  II  of  the  treaty  with  Great  Britain  of  INIarch  2,  1899, 
provides  that:  "The  citizens  or  subjects  of  each  of  the  Contracting  Parties 
shall  have  full  power  to  dispose  of  their  personal  propert}'  within  the  territories 
of  the  other,  by  testament,  donation,  or  othen\-ise ;  and  their  heirs,  legatees, 
and  donees,  being  citizens  or  subjects  of  the  other  Contracting  Party,  whether 
resident  or  non-resident,  shall  succeed  to  their  said  personal  property  and  may 
take  possession  thereof  either  by  themselves  or  by  others  acting  for  them,  and 
dispose  of  the  same  at  their  pleasure,  paying  such  duties  onlv  as  the  citizens 
or  subjects  of  the  country  where  the  property  lies  shall  be  liable  to  pay  in  like 
cases."     Malloy's  Treaties,  I,  774. 

VOL.  I— 12  353 


§  203]     GENERAL  RIGHTS   OF   PROPERTY   AND   CONTROL 

A  State  may  be  unwilling  to  permit  the  succession  to  and  re- 
tention of  title  to  immovable  property  within  its  domain  by  persons 
other  than  its  own  nationals,  or  by  aliens  who  are  non-residents. 
No  rule  of  international  law  is  believed  to  prescribe  a  different 
course. 

The  Government  of  the  United  States  has  exhibited  restraint  in 
generally  refraining  from  attempts  to  hinder  the  several  States 
of  the  Union  from  shaping  their  own  policies  with  regard  to  lands 
within  their  respective  territorial  limits.^  It  is  not  understood 
that  the  United  States  is  a  party  to  any  treaty  now  in  force,  which 
permits  aliens  residing  in  foreign  territory  to  succeed  to  and  retain 
lands  in  the  several  States  of  the  Union,  save  in  those  where  the 
right  is  accorded  by  the  local  law.  Even  this  exceptional  pro- 
vision is  rarely  found. ^ 

The  United  States  has  in  certain  treaties  agreed  to  permit  the 
nationals  of  the  other  contracting  party  to  enjoy  the  right  of  suc- 
cession by  inheritance  or  otherwise,  and  to  allow  the  successor  to 
a  title    a   reasonable   time    (sometimes    specified)   within  which 

'  See,  however,  Art.  XI  of  the  treaty  of  amity  and  commerce  with  France, 
of  Feb.  6,  1778,  Malloy's  Treaties,  I,  471 ;  also  Art.  VII  of  the  convention 
with  France  of  Sept.  30,  1800,  id.,  498.  See,  in  this  connection,  Carneal  v. 
Banks,  10  Wheat.  181,  at  189,  where  Chief  Justice  Marshall  in  the  course  of 
the  opinion  of  the  Court  declared :  "This  court  decided,  in  the  case  of  Chirac 
V.  Chirac  (2  Wheat.  259),  that  the  treaty  of  1778,  between  the  United  States 
and  France,  secures  the  citizens  and  subjects  of  either  power  the  privilege  of 
holding  lands  in  the  territory  of  the  other." 

^  By  the  terms  of  Art.  VII  of  the  consular  convention  with  France  of  Feb. 
23,  1853,  it  was  declared  that  "in  all  the  States  of  the  Union,  whose  existing 
laws  permit  it,  so  long  and  to  the  same  extent  as  the  said  laws  shall  remain  in 
force,  Frenchmen  shall  enjoy  the  right  of  possessing  personal  and  real  prop- 
erty by  the  same  title  and  in  the  same  manner  as  the  citizens  of  the  United 
"States.  They  shall  be  free  to  dispose  of  it  as  they  may  please,  either  gratu- 
itously or  for  value  received,  by  donation,  testament  or  otherwise,  just  as 
those  citizens  themselves ;  and  in  no  case  shall  they  be  subjected  to  taxes  on 
transfer,  inheritance  or  any  others  different  from  those  paid  by  the  latter,  or 
to  taxes  which  shall  not  be  equally  imposed. 

"As  to  the  States  of  the  Union,  by  whose  existing  laws  aliens  are  not  per- 
mitted to  hold  real  estate,  the  President  engages  to  recommend  to  them  the 
passage  of  such  laws  as  may  be  necessary  for  the  purpose  of  conferring  this 
right."     Malloy's  Treaties,  I,  531. 

Concerning  the  application  of  this  Article  to  the  District  of  Columbia, 
isee  Geofroy  v.  Riggs,  133  U.  S.  258 ;  and  to  Nebraska,  see  Bahuaud  v.  Bize, 
105  Fed.  485. 

See,  also,  Art.  V  of  treaty  with  Switzerland  of  Nov.  25,  1850,  Malloy's 
Treaties,  II,  1765,  and  concerning  its  interpretation,  cf.  Hauenstein  v.  Lyn- 
ham,  100  U.  S.  483. 

It  may  be  doubted  whether  Art.  VI  of  the  treaty  with  Sweden  of  April  3, 
1783,  revived  by  Art.  XVII  of  the  treaty  of  July  4,  1827,  Malloy's  Treaties,  II, 
1727  and  1754,  conferred  upon  a  national  of  Sweden  the  right  to  succeed 
to  and  hold  lands  in  an  American  State  whose  local  laws  opposed  the  privilege. 
See  Meier  v.  Lee,  106  Iowa,  303.  But  see,  contra,  Adams  v.  Akerlund,  168 
111.  632. 

354 


ALIEN  OWNERSHIP  OF  LAND  [§  203 

to  dispose  of  it.^  Subject  to  such  engagements,  the  rights  of 
aliens  with  respect  to  lands  in  the  several  States  are  to  be  ascer- 
tained by  reference  to  the  local  laws." 

As  a  result  of  Acts  of  Congress  enacted  in  1897  and  1905,^  no 
alien  or  person  who  is  not  a  citizen  of  the  United  States,  or  who 
has  not  declared  his  intention  to  become  such  in  the  manner  pro- 
vided by  law,  is  permitted  to  acquire  title  to  or  own  any  land  in 

1  See,  for  example,  Art.  II  treaty  with  Austria,  May  8,  1848,  Malloy's 
Treaties,  I.  34;  Art.  II  treaty  with  Bavaria,  Jan.  21,  1845,  id.,  57;  Art.  XII 
treaty  with  BoHvia,  May  13,  1858,  id.,  117;  Art.  XI  treaty  with  Brazil,  Dec. 
12,  1828,  id.,  136;  Art.  II  treaty  with  Brunswick-Llineburg,  Aug.  21,  1854, 
id.,  157;  Art.  XII  treaty  with  Oolombia  (New  Granada),  Dec.  12,  1846,  id., 
305 ;  convention  with  Great  Britain,  March  2,  1899,  id.,  774 ;  Art.  I  con- 
vention with  Guatemala,  Aug.  27,  1901,  id.,  876;  Art.  VII  treaty  with  Han- 
seatic  Republics,  Dec.  20,  1827,  id.,  903 ;  Art.  II  convention  with  Hesse, 
March  26,  1844,  id.,  947 ;  Art.  X  treaty  with  Mecklenburg-Schwerin,  Dec. 
9,  1847,  id.,  1078;  Art.  X  treaty  with  Russia,  Dec.  18,  1832,  id.,  II,  1517; 
Art.  II  treaty  with  Saxony,  Mav  14,  1845,  id.,  1610;  Art.  Ill  treaty  with 
Spain,  July  3,  1902,  id.,  1702;  Art.  V  treaty  with  Switzerland,  Nov.  25,  1850, 
id.,  1765  ;  Art.  II  treaty  with  Wiirttemberg,  April  10,  1844,  id.,  1893. 

For  a  discussion  of  the  judicial  interpretation  of  the  several  treaties  of  the 
United  Spates,  see  "Aliens  under  the  l^'ederal  Laws  of  the  United  States", 
by  SamueTlVIacClintock,  Illinois  Law  Rev.,  IV,  95.  In  the  course  of  a  sum- 
mary the  writer  declares,  at  p.  109:  "These  treaties  [save  those  with  France 
of  1853,  and  Switzerland  of  1850]  generally  grant  to  subjects  of  the  foreign 
power,  who,  but  for  their  alienage,  would  be  entitled  to  acquire  the  lands  in 
question,  the  right,  notwithstanding  alien  disabilities  of  the  let  rei  sitae,  to 
acquire  lands  in  the  States  and  Territories  and  in  the  District  of  Columbia. 
(Johnson  v.  Elkins,  1  App.  D.  C.  430;  Jost  v.  Jost,  1  Mackey,  486.)  The 
estates  so  acquired,  though  held  by  the  alien,  as  if  by  a  citizen,  are  defeasible, 
under  the  condition  that  the  lands  acquired  under  them  must  be  sold  to  a  per 
son  able  to  hold  them,  and  within  the  times  provided  for  in  the  treaties.  (Chi- 
rac V.  Chirac,  2  Wheat.  275 ;  Schultze  v.  Schultze,  144  111.  290.)  The  power 
to  sell,  provided  for  in  the  treaties,  is  a  property  right  and  not  a  mere  personal 
privilege.  (De  France  v.  Howard,  1  Fed.  Rep.  776.)  If  the  conditions  of 
the  treaty  are  broken,  the  lands  will  not  immediately  escheat  to  the  State, 
but  a  special  proceeding,  corresponding  to  inquest  of  office  found,  is  necessary 
to  vest  the  title  in  the  State,  especially  wliere  the  treaty  gives  a  reasonable 
time  in  which  to  sell  the  land.  (Wunderle  v.  Wunderle,  144  111.  40:  So- 
ciety etc.  V.  New  Haven,  8  Wheat.  492 ;  Slater  v.  Mason,  15  Pick.  345.)" 

2  For  a  resume  of  the  statutes  and  judicial  decisions  of  the  various  States 
of  the  Union  with  respect  to  the  acquisition,  inheritance  or  holding  of  lands 
by  aliens,  see  Moore,  Dig.,  IV,  32-38.  Also  Donaldson  v.  State,  67  N.  E. 
1029. 

Concerning  the  right  of  aliens  at  common  law  to  succeed  to  lands,  see  Storj^ 
J.,  in  Fairfax's  Devisee  v.  Hunter's  Lessee,  7  Cranch,  603,  619 ;  McCreery's 
Lessee  v.  Somerville,  9  Wheat.  354;  Field,  J.,  in  Phillips  v.  Moore,  100  U.  S. 
208. 

3  An  Act  of  March  3,  1887  (24  Stat.  476),  established  prohibitions  with 
respect  to  real  estate  in  the  Territories  of  the  United  States  and  in  the  Dis- 
trict of  Columbia.  An  Act  of  March  2,  1897  (29  Stat.  618  and  619),  of  which 
certain  provisions  are  referred  to  in  the  text,  was  by  its  terms  withheld  from 
application  to  the  District  of  Columbia,  but  amended  the  Act  of  1887  with 
respect  to  lands  in  the  Territories.  An  Act  of  Feb.  23,  1905  (33  Stat.  733), 
amended  the  Act  of  1897,  so  as  to  extend  to  aliens  the  same  rights  and  privi- 
leges concerning  the  acquisition,  holding,  owning  and  disposition  of  real  es- 
tate in  the  District  of  Columbia  as  were  conferred  upon  them  in  respect  of  real 
estate  in  the  Territories  by  the  Act  of  1897.     It  should  be  observed  that  the 

355 


§  203]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

any  of  the  Territories  of  the  United  States,  or  within  the  District 
of  Columbia,  save  under  exceptional  conditions  that  are  specified. 
Thus,  the  prohibition  is  not  applicable  to  cases  in  which  the  right 
to  hold  or  dispose  of  land  in  the  United  States  is  secured  by  exist- 
ing treaties  to  citizens  or  subjects  of  foreign  countries.^  Nor  does 
it  apply  to  land  owned  (]\Iarch  2,  1897)  by  aliens,  which  was  ac- 
quired on  or  before  ]March  3,  1S87,  so  long  as  it  is  held  by  the  then 
owners,  their  heirs  or  legal  representatives ;  nor  does  it  apply  to 
any  alien  w^ho  becomes  a  bona  fide  resident  of  the  United  States. 
It  is  declared  that  any  alien  who  becomes  such  a  resident,  or  who 
duly  declares  his  intention  to  become  a  citizen  of  the  United  States, 
may  acquire  and  hold  lands,  provided,  however,  that  if  such  resi- 
dent alien  shall  cease  to  be  a  bona  fide  resident  of  the  United  States, 
he  shall  have  ten  years  from  the  time  of  the  cessation  of  that  resi- 
dence in  which  to  alienate  such  lands.^ 

The  restrictions  imposed  by  the  United  States  in  its  legislation 
and  reflected  in  its  treaties  may  appear  to  reveal  a  disposition  in 
contrast  to  that  manifested  by  certain  other  enlightened  States.^ 

Act  of  1887  prohibited  the  acquisition,  holding  or  owning  of  real  estate  or 
of  any  interest  therein  by  alien  corporations.  The  same  Act  declared  that 
no  corporation  or  association,  more  than  twenty  per  cent  of  the  stock  of  which 
was  or  might  be  "owned  by  any  person  or  persons,  corporation  or  corporations, 
association  or  associations,  not  citizens  of  the  United  States  ",  should  there- 
after acquire  or  hold  or  own  any  real  estate.  These  provisions  were  super- 
seded in  so  far  as  they  were  declared  to  be  applicable  to  the  Territories,  by 
the  Act  of  1897.  Whether  the  Act  of  1905,  aniending  the  Act  of  1897  so 
as  to  render  its  provisions  applicable  to  the  District  of  Columbia,  served  also 
to  render  the  prohibitions  relative  to  corporate  acquisition  and  ownership 
of  land  inappUcable  to  the  District  of  Columbia,  is  one  on  which  no  opinion 
is  ventured.  See,  in  this  connection,  4  U.  S.  Comp.  Stat.  Ann.,  §§  3498  and 
3499,  with  notes. 

1  It  is  declared,  however,  that  such  rights,  so  far  as  they  may  exist  by  force 
of  any  treaty,  are  to  continue  to  exist  so  long  as  such  treaty  is  in  force,  and  no 
longer. 

^  It  is  provided  that  the  Act  of  1897  is  not  to  be  construed  to  prevent  any 
persons  not  citizens  of  the  United  States  from  acquiring  or  holding  lots  or 
parcels  of  lands  in  any  incorporated  or  platted  city,  town  or  village,  or  in 
any  mine  or  mining  claim,  in  any  of  the  Territories  of  the  United  States  (and 
by  virtue  of  the  Act  of  1905,  within  the  District  of  Columbia). 

The  Act  of  1897  makes  provision  for  the  acquisition  by  ahens  of  lands  by 
inheritance  or  in  the  collection  of  debts,  requiring,  however,  ultimate  sale 
within  a  specified  period.  Arrangements  for  escheat  proceedings  and  con- 
demnations and  sales  thereunder  are  also  specified. 

Concerning  the  history  of  the  legislation  of  the  United  States,  see  Samuel 
MacClintock,  in  Illinois  Law  Rev.,  IV,  27. 

See  the  liberal  provisions  of  Art.  VI  of  convention  between  the  United 
States  and  Denmark  providing  for  the  cession  of  the  Danish  West  Indies,  of 
Aug.  4,  1916,  with  respect  to  the  rights  of  Danish  citizens  not  residing  in  the 
islands  but  owning  property  therein  at  the  time  of  the  cession.  U.  S.  Treaty 
Series,  No.  629,  Am.  J.,  XI,  Supp.,  53,  58. 

3  See,  for  example,  the  British  Act  of  May  12,  1870,  33  Vict.  c.  14,  §  12 ;  also 
Moore,  Dig.,  IV,  43-50,  with  respect  to  the  laws  of  certain  other  States. 
See  Arts.  Ill  and  XIV  of  the  treaty  between  the  United  States  and  China 

356 


PURSUITS  AND  OCCUPATIONS  [§  204 

It  should  be  borne  in  mind,  however,  that  the  extensive  area  of 
American  territory,  both  within  and  without  the  limits  of  the  sev- 
eral States  of  the  Union,  and  open  and  increasingly  subjected  to 
use  and  acquisition  by  residents  of  foreign  origin  and  nationality, 
requires  special  safeguarding  in  order  to  prevent  the  natural 
transfer,  by  inheritance  or  otherwise,  of  important  interests  to 
aliens  not  residing  in  the  United  States.  The  continued  ownership 
by  such  individuals  of  large  and  numerous  tracts  of  land  within 
American  territory  might  be  fairly  regarded  as  essentially  detri- 
mental to  the  welfare  of  the  nation. 


(b) 

§  204.   Pursuits   and   Occupations.     Practice   of   Learned 
Professions. 

A  State  may  lawfully  exercise  a  large  control  over  the  pursuits, 
occupations  and  modes  of  living  of  the  inhabitants  of  its  domain. 
In  so  d^ing  it  may  doubtless  subject  resident  aliens  to  discrimina- 
tion without  necessarily  violating  any  principle  of  international 
law. 

In  the  United  States,  local  legislative  enactments  have  not  in- 
frequently manifested  such  a  purpose.  Thus  in  1909  a  statute 
of  Pennsylvania  rendered  it  unlawful  for  unnaturalized  foreign- 
born  residents  to  kill  wild  game  except  in  defense  of  their  persons 
or  property.^  The  United  States  Supreme  Court  has  repeatedly 
held  within  recent  years  that  such  discriminatory  legislation  is  not 
necessarily  unconstitutional,  and  it  has  not  intimated  that  con- 
stitutional discriminatory  legislation  was  at  variance  with  the 
principles  of  international  law.^  It  should  be  observed,  however, 
that  discriminatory  legislation  may  in  fact  assume  a  form  which 
violates  the  Fourteenth  Amendment  affording  the  inhabitants  of 
every  State  equal  protection  of  its  laws.  In  such  case  the  resi- 
dent alien  may  invoke  this  constitutional  provision  which  is  ju- 
dicially applied  for  his  benefit  as  well  as  for  that  of  every  other 

of  Oct.  8,  1903,  Malloy's  Treaties,  I,  263  and  268,  respectively,  in  relation  to 
the  rights  of  American  merchants  and  missionaries,  respectively,  to  acquire 
interests  in  land  in  China.  See,  also,  Mr.  Root,  Secy,  of  State,  to  Mr.  Rock- 
hill,  American  Minister  to  China,  March  2,  1906,  For.  Rel.  1906,  I,  277. 

1  Patsone  v.  Pennsylvania,  232  U.  S.  138. 

'  See,  for  example,  Patsone  v.  Pennsylvania,  supra;  also  Heim  v.  McCall, 
239  U.  S.  175 ;  Crane  v.  New  York,  239  U.  S.  195,  where  it  was  held  that  a 
State  statute  regarding  the  employment  of  laborers,  otherwise  valid,  was 
not  unconstitutional  under  the  equal  provision  clause  of  the  Fourteenth  Amend- 
ment because  it  made  distinctions  between  aliens  and  citizens. 

357 


§  204]     (GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

aggrieved  inhabitant  of  the  State  concerned.^  If  it  adjudges  a 
local  discriminatory  enactment  to  be  unconstitutional,  the  Supreme 
Court  of  the  United  States  appears  to  be  indisposed  to  determine 
also  whether  the  law  is  violative  of  any  treaty  rights  invoked  by 
the  alien  litigant.^ 

The  United  States  has  not  infrequently  undertaken  by  treaty 
to  accord  the  nationals  of  other  States  residing  within  its  terri- 
tories the  same  measure  of  protection  for  their  persons  and  prop- 
erty, and  the  same  rights  and  privileges  for  their  commerce  and 
navigation,  as  are  possessed  by  the  "natives."  ^  In  consequence, 
there  have  been  numerous  adjudications  involving  the  inquiry 

^  Truax  v.  Raich,  239  U.  S.  33,  where  it  was  held  that  a  statute  of  Arizona, 
of  1914,  requiring  that  employers  should  only  employ  a  specified  percentage 
of  alien  employees,  denied  to  alien  inhabitants  of  that  State  the  rights  ac- 
corded them  under  the  Fourteenth  Amendment  to  the  equal  protection  of  its 
laws.  In  the  course  of  the  opinion  of  the  court,  Mr.  Justice  Hughes  declared, 
pp.  39^0,  41-42,  43:  "The  discrimination  defined  by  the  act  does  not  per- 
tain to  the  regulation  or  distribution  of  the  public  domain,  or  of  the  common 
property  or  resources  of  the  people  of  the  State,  the  enjoyment  of  which  may 
be  limited  to  its  citizens  as  against  both  aliens  and  the  citizens  of  other  States. 
Thus  in  McCready  v.  Virginia,  94  U.  S.  391,  396,  the  restriction  to  the  citi- 
zens of  Virginia  of  the  right  to  plant  oysters  in  one  of  its  rivers  was  sustained 
upon  the  ground  that  the  regulation  related  to  the  common  property  of  the 
citizens  of  the  State,  and  an  analogous  principle  was  involved  in  Patsone  t;. 
Pennsylvania,  232  U.  S.  138,  145,  146,  where  the  discrimination  against  aliens 
upheld  by  the  court  had  for  its  object  the  protection  of  wild  game  within  the 
States  with  respect  to  which  it  was  said  that  the  State  could  exercise  its  pre- 
serving power  for  the  benefit  of  its  own  citizens  if  it  pleased.  The  case  now 
presented  is  not  within  these  decisions,  or  within  those  relating  to  the  devolu- 
tion of  real  property  (Hauenstein  v.  Lynham,  100  U.  S.  483  ;  Blythe  v.  Hinck- 
ley, 180  U.  S.  333,  341,  342) ;  and  it  should  be  added  that  the  act  is  not  limited 
to  persons  who  are  engaged  on  public  work  or  receive  the  benefit  of  public 
moneys.  The  discrimination  here  involved  is  imposed  upon  the  conduct  of 
ordinary  private  enterprise.  .  .  .  The  discrimination  against  aliens  in  the 
wide  range  of  employment  to  which  the  act  relates  is  made  an  end  in  itself 
and  thus  the  authority  to  deny  to  aliens,  upon  the  mere  fact  of  their  alienage, 
the  right  to  obtain  support  in  the  ordinary  fields  of  labor  is  necessarily  in- 
volved. .  .  .  The  discrimination  is  against  aliens  as  such  in  competition  with 
citizens  in  the  described  range  of  enterprises  and  in  our  opinion  it  clearly  falls 
under  the  condemnation  of  the  fundamental  law." 

Mr.  Justice  McReynolds  rendered  a  dissenting  opinion. 

2  Id.,  43. 

3  See,  for  example,  Art.  Ill  of  the  treaty  with  Italy  of  Feb.  26,  1871,  Mal- 
loy's  Treaties,  I,  970,  where  it  was  provided  that  "the  citizens  of  each  of  the 
high  contracting  parties  shall  receive,  in  the  States  and  Territories  of  the 
other,  the  most  constant  protection  and  security  for  their  persons  and  prop- 
erty, and  shall  enjoy  in  this  respect  the  same  rights  and  privileges  as  are 
or  shall  be  granted  to  the  natives,  on  their  submitting  themselves  to  the  condi- 
tions imposed  upon  the  natives."  See,  also.  Art.  I  of  the  same  treaty,  where 
it  was  provided  that  such  individuals  "shall  enjoy,  respectively,  within  the 
States  and  possessions  of  each  party,  the  same  rights,  privileges,  favors,  im- 
munities, and  exemptions  for  their  commerce  and  navigation  as  the  natives 
of  the  country  wherein  they  reside,  without  paying  other  or  higher  duties  or 
charges  than  are  paid  by  the  natives,  on  condition  of  their  submitting  to  the 
laws  and  ordinances  there  prevailing."  See,  also.  Art.  I  of  treaty  with  Japan 
of  Feb.  21,  1911,  Charles'  Treaties,  77. 

358 


PURSUITS  AND  OCCUPATIONS  [§  204 

whether  a  particular  local  law,  discriminatory  in  design  or  effect, 
was  in  conflict  with  such  requirements.^  The  resulting  inter- 
pretations which,  when  expressed  by  the  Supreme  Court,  have 
been  deemed  to  bind  the  executive  department  of  the  Government,^ 
have  revealed  the  fact  that  the  treaty  provisions  of  the  nineteenth 
century  were  wholly  inadequate  to  shield  from  practical  discrim- 
ination important  interests  of  numerous  resident  aliens  engaged 
in  industrial  occupations.^  Those  interests  were,  for  example, 
affected  adversely  by  statutes  confining  the  benefits  of  laws  cre- 
ating a  right  of  action  in  case  of  death  caused  by  the  negligence 
of  an  employer,  or  limiting  the  benefits  of  so-called  workmen's 
compensation  acts,  to  the  resident  heirs  of  individuals  killed  in 
the  course  of  employment.'*  In  view  of  these  circumstances,  the 
United  States  and  Italy  sought,  by  a  convention  concluded  Febru- 
ary 23,  1913,  to  broaden  the  scope  of  the  existing  treaty  of  com- 
merce and  navigation  of  1871,  so  as  to  cover  this  situation.^  The 
attempt  was  fairly  successful.® 

1  See,  for  example,  Maiorano  v.  Baltimore  &  Ohio  R.  R.  Co.,  213  U.  S. 
175 ;  Patsone  v.  Pennsylvania,  232  U.  S.  138 ;  Heim  v.  McCall,  239  U.  S. 
175. 

2  In  this  connection,  see  Mr.  Adee,  Acting  Secv.  of  State,  to  the  Italian  Am- 
bassador at  Washington,  No.  891,  Oct.  1,  1910,  For.  Rel.  1910,  664,  670. 

3  See,  for  example,  Maiorano  v.  Baltimore  &  Ohio  R.  R.  Co.,  213  U.  S.  175, 
where  it  was  correctly  held  that  the  provisions  of  the  treaty  with  Italy,  of  1871, 
did  not  confer  upon  the  non-resident  alien  relatives  of  a  national  of  Italy  a 
right  of  action  for  damages  for  his  death  in  Pennsylvania,  although  such  an 
action  was  afforded  by  a  statute  of  that  State  to  native  resident  relatives,  when 
the  statute  as  construed  by  the  highest  court  of  that  State  did  not  give  to 
non-resident  alien  relatives  such  a  right. 

*  See  discussion  between  the  Department  of  State  and  the  Italian  Em- 
bassy at  Washington,  respecting  the  Maiorano  case  in  For.  Rel.  1909,  391- 
393,  and  id.,  1910,  6.57-673. 

5  See  convention  with  Italy,  of  Feb.  25,  1913,  Charles'  Treaties,  442,  to  the 
effect  that  "The  citizens  of  each  of  the  High  Contracting  Parties  shall  receive 
in  the  States  and  Territories  of  the  other  the  most  constant  security  and  pro- 
tection for  their  persons  and  property  and  for  their  rights,  including  that  form 
of  protection  granted  by  any  State  or  national  law  which  establishes  a  civil 
responsibility  for  injuries  or  for  death  caused  by  negligence  or  fault  and  gives 
to  relatives  or  heirs  of  the  injured  party  a  right  of  action,  which  right  shall 
not  be  restricted  on  account  of  the  nationality  of  said  relatives  or  heirs ;  and 
shall  enjoy  in  this  respect  the  same  rights  and  privileges  as  are  or  shall  be  granted 
to  nationals,  provided  that  they  submit  themselves  to  the  conditions  imposed 
on  the  latter." 

6  It  may  be  observed  that  within  recent  years  a  marked  tendency  in  both 
Federal  and  State  legislation  to  refrain  from  discriminations  adverse  to  non- 
resident alien  beneficiaries  has  manifested  itself.  See,  for  example,  the 
provisions  of  the  Federal  Act  imposing  liability  on  common  carriers  bj^  rail- 
roads engaged  in  interstate  or  foreign  commerce,  for  injuries  to  employees 
from  negligence,  as  set  forth  in  Act  of  April  22,  1908,  35  Stat.  65-66,  and  §9, 
added  April  5,  1910,  36  Stat.  291.  See  McGovern  v.  Philadelphia  &  Read- 
ing Ry.  Co.,  235  U.  S.  389,  where  it  was  held  that  this  Act  should  be  inter- 
preted as  applicable  to  non-resident  alien  relatives  of  a  decedent. 

In  certain  State  legislation,  as  a  means  of  removing  obstacles  in  the  way  of 

359 


§204]     GENERAL  RIGHTS   OF  PROPERTY   AND   CONTROL 

It  is  believed  that,  in  general,  the  existing  treaties  of  com- 
merce concluded  by  the  United  States  with  European  powers 
in  the  course  of  the  nineteenth  century  have  in  certain  respects 
ceased  to  be  responsive  to  the  legitimate  needs  of  the  nationals 
of  the  latter  residing  in  American  territory.  Nor  have  the  re- 
quirements of  international  law  imposed  restraints  sufficient  in 
fact  to  protect  such  individuals  from  essentially  harsh  treat- 
ment, either  resulting  from,  or  in  spite  of,  technically  flawless 
enactments- 

A  State  may  reasonably  exercise  a  rigid  control  over  the  prac- 
tice of  learned  professions  within  its  territory.  Thus,  it  may 
prescribe  tests  of  the  fitness  of  persons  to  be  permitted  to  prac- 
tice, and  that  regardless  of  their  nationality.  Unless  restrained 
by  treaty,  it  may  not  unlawfully  discriminate  against  aliens.  Nor 
is  it  under  any  obligation  to  accept  as  assurances  of  fitness  the 
degrees  issued  by  foreign  institutions  of  learning,  and  especially 
certificates  emanating  from  those  not  operating  under  govern- 
mental supervision  or  enjoying  local  official  recognition.  The 
territorial  sovereign  must  be  free  to  establish  for  itself  the  extent 
and  mode  of  recognizing  the  attainments  of  persons  trained  in 
foreign  countries.  The  United  States  has  necessarily  acknowl- 
edged the  propriety  of  the  application  of  this  principle  with 
respect  to  Americans  seeking  to  practice  a  learned  profession 
in  a  foreign  State.  It  has  demanded,  however,  that  govern- 
mental regulations  be  applied  impartially  to  American  residents, 
and  without  discrimination  favorable  to  those  of  other  alien 
nationalities.^ 

judicial  interpretation,  it  has  been  expressly  declared  that  non-resident 
alien  relatives  should  not  be  excluded  from  benefits  provided.  See,  for  ex- 
ample, Wisconsin  Statutes,  1915  ed..  Chap.  178,  Section  4256,  where  it  is  de- 
clared that  "a  nonresident  alien  surviving  wife  and  minor  children  shall  be  en- 
titled to  the  benefits"  of  the  section. 

1  Mr.  John  Davis,  Acting  Secy,  of  State,  to  Mr.  Matthews,  Consul  at 
Tangier,  Aug.  11,  1883,  108  MS.  Inst.  Consuls,  82,  Moore,  Dig.,  II,  182; 
Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Wallace,  Minister  to  Turkey,  March 
27,  1884,  For.  Rel.  1884,  553,  Moore,  Dig.,  II,  183;  Mr.  Bavard,  Secv.  of 
State,  to  Mr.  Chase,  Aug.  3,  1886,  161  MS.  Dom.  Let.  134,  Moore,  Dig.,  II, 
181 ;  also  case  of  expulsion  of  Paul  Edwards  from  Belgium  in  1900,  For.  Rel. 
1900,  45-53,  Moore,  Dig.,  IV,  93-94. 

Concerning  the  requirements  of  certain  foreign  States  respecting  the  practice 
of  medicine  within  their  respective  territories,  see  documents  cited  in  Moore, 
Dig.,  II,  181-184.  For  the  laws  of  the  Argentine  Republic,  For.  Rel., 
1905,  35-38;  id.,  1906,  I,  11. 

The  convention  relating  to  the  practice  of  the  liberal  professions,  signed 
at  the  Second  Pan-American  Conference  at  Mexico,  Jan.  28,  1902,  Moore, 
Dig.,  II,  184,  was  the  subject  of  a  resolution  of  approval  and  confirmation  at 
the  Third  Pan-American  Conference  at  Rio  de  Janeiro,  Aug.  22,  1906.  For. 
Rel.  1906,  II,  1609-1610. 

360 


TAXATION  [§  205 

(c) 
§  205.   Taxation. 

In  levying  taxes  to  defray  the  expenses  of  government,  no  duty 
is  imposed  upon  a  State  to  leave  unburdened  either  property 
owned  by  aliens,  or  persons  who  may  themselves  be  aliens.^  Nor 
does  any  principle  of  international  law  forbid  the  territorial 
sovereign  to  impose,  in  some  instances,  a  heavier  burden  upon 
the  interests  of  such  individuals  than  is  placed  upon  those  of  its 
own  nationals.^  The  existing  practice  of  enlightened  States  in 
so  far  as  it  is  manifested  by  conventional  arrangements  tends, 
however,  to  place  aliens  generally  upon  an  equal  footing  with 
nationals.^  Save  in  cases  indicating  a  marked  abuse  of  power, 
or  a  disregard  of  the  terms  of  a  treaty,  the  United  States  does  not 
appear  to  find  in  the  taxation  of  its  nationals  or  of  their  property 
abroad  reasons  for  diplomatic  remonstrance  or  interposition.* 

A  State  may  doubtless  wrongly  determine  that  persons  or  prop- 
erty within  its  territory  is  subject  to  taxation.  Thus,  it  may, 
for  example,  attempt  to  impose  a  tax  on  the  person  of  an  alien 
who  is  in  no  sense  a  permanent  resident  within  its  domain.  Or 
it  may  endeavor  to  tax  tangible  property  as  such  which  happens 
to  be  merely  temporarily  therein  and  which  belongs  elsewhere.^ 

1  Mr.  F.  W.  Seward,  Acting  Secy,  of  State,  to  Mr.  Acosta  y  Foster,  April 
8,  1878,  122  MS.  Dom.  Let.  403,  Moore,  Dig.,  II,  56;  Mr.  Cadwalader, 
Asst.  Secy,  of  State,  to  Mr.  Melizet,  Mar.  16,  1875,  107  MS.  Dom.  Let.  172, 
Moore,  Dig.,  IV,  20;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Gushing,  Minister  to 
Spain,  Jan.  12,  1876,  MS.  Inst.  Spain,  XVII,  4.32,  Moore,  Dig.,  IV,  21 ;  Mr. 
Evarts,  Secv.  of  State,  to  Mr.  Kasson,  Minister  to  Austria-Hungary,  Jan.  17, 
1880,  MS.  Inst.  Austria-Hungary,  III,  80,  Moore,  Dig.,  II,  56.  See,  also, 
Frantz's  Appeal  52,  Pa.  St.  367.  With  respect  to  Forced  Loans  and  War 
Taxes,  cj.  Neutral  Persons  and  Property  within  Belligerent  Territory,  injra, 
§§  630,  631. 

2  See,  for  example,  Act  130  of  the  Louisiana  law  of  July  11,  1894,  imposing 
an  inheritance  tax  of  ten  per  cent,  on  the  value  of  all  successions  passing  to 
non-resident  aliens.  Acts  passed  by  the  General  Assembly  of  the  State  of 
Louisiana,  regular  session,  1894,  p.  165.  See,  also,  E.  M.  Borchard,  Diplo- 
matic Protection,  95-96,  §  41. 

'  The  following  Articles  of  treaties  of  the  United  States  may  be  noted : 
Art.  X  treaty  with  the  Argentine  Republic  (Confederation),  July  27,  1853, 
Malloy's  Treaties,  I,  23 ;  Art.  VII  convention  with  France,  Feb.  23,  1853, 
id.,  531;  Art.  I  treaty  with  Japan,  Feb.  21,  1911,  Charles'  Treaties,  77; 
Art.  II  treaty  with  Spain,  July  3,  1902,  Malloy's  Treaties,  II,  1701 ;  Art. 
II  treaty  with  Serbia,  Oct.  14,  1881,  id.,  1614.  See,  also,  provisions  contained 
in  Art.  IV  of  the  treaty  with  China  of  Oct.  8,  1903,  Malloy's  Treaties,  I,  263 ; 
award  of  Hon.  Wm.  R.  Day,  Arbitrator  in  the  matter  of  the  claims  of  John 
D.  Metzger  &  Co.,  against  the  Republic  of  Haiti,  For.  Rel.  1901,  264,  272-276. 

^  Mr.  Fish,  Secv.  of  State,  to  Mr.  Gushing,  Minister  to  Spain,  Jan.  12, 
1876,  MS.  Inst.  Spain,  XVII,  432,  Moore,  Dig.,  II,  63,  64;  see,  also,  Mr. 
Evarts,  Secy,  of  State,  to  Mr.  Langston,  Minister  to  Haiti,  No.  25,  April  1''. 
1878.  MS.  Inst.  Haiti,  II.  143,  Moore,  Dig.,  IV,  23. 

^  See,  in  this  connection,  an  illuminating  paper  by  Joseph  H.  Beale,  entitled 
".Jurisdiction  to  Tax",  Harv.  Law  Rev.,  XXXII,  587. 

361 


§205]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

It  must  be  clear  that  the  right  of  the  territorial  sovereign  to  im- 
pose a  personal  tax  upon  an  individual  depends  upon  the  intimacy 
and  closeness  of  the  relationship  that  has  been  established  between 
itself  and  him.  Internationally,  a  sufficient  relationship  always 
exists  between  the  State  and  its  national,  and  that  regardless  of 
his  residence.^  It  will  be  observed,  however,  that  circumstances 
other  than  nationality  may  also  suffice  to  create  the  necessary  re- 
lationship. It  must  be  equally  clear  that  the  right  of  the  terri- 
torial sovereign  to  tax  property  as  such  depends  upon  its  having 
such  a  connection  with  the  taxing  State  as  to  justify  the  conclusion 
that  it  is  an  asset  belonging  thereto,  protected  by  its  power  and 
from  which  contribution  should  be  made  to  support  the  govern- 
ment. These  fundamental  principles  require  constant  recognition. 
The  extent  to  which  they  have  met  with  judicial  approval  in  the 
United  States  in  certain  cases  of  a  domestic  (rather  than  an  inter- 
national) character  may  be  noted. 

In  general,  all  immovable  property  within  the  territory  of  a 
State,  regardless  of  the  residence  or  nationality  of  the  owner,  is, 
with  a  few  notable  exceptions  which  are  explainable  on  precise 
grounds,^  subject  to  taxation ;  ^  likewise,  all  movable  property 
therein,  provided  it  may  be  fairly  regarded  as  incorporated  in 
the   mass  of  property  there  belonging.^     Difficulties  may  arise 

1  Thus  no  international  problem  arises  if  a  State  endeavors  to  tax  personally 
a  non-resident  national  and  to  collect  what  is  levied  against  him  out  of  his 
property  found  within  its  territory.  In  case  no  such  property  is  there  to  be 
found,  all  diplomatic  protection  may  be  withheld  from  such  a  national  who 
decUnes  to  pay  what  is  assessed  against  him.  The  imposition  of  such  a  penalty 
is  hardly  a  matter  of  international  concern. 

It  may  be  observed  that  the  Income  Tax  Law  of  Sept.  8,  1916,  contem- 
plated the  taxation  generally  of  every  "citizen"  as  well  as  "resident"  of  the 
United  States.     39  Stat.  756. 

Cf.,  United  States  v.  Bennett,  232  U.  S.  299,  in  which  the  constitutionality 
of  §  37  of  the  Tariff  Act  of  1909,  imposing  a  ta.\  on  foreign-built  yachts,  was 
upheld,  and  the  law  applied  to  a  yacht  owned  by  an  American  citizen  but 
which  had  not  been  within  the  jurisdiction  of  the  United  States  during  any 
part  of  the  period  for  which  the  tax  was  levied. 

2  The  property  owned  by  a  foreign  government  and  used  as  its  embassy 
or  legation  may  be  noted  as  an  exception.  Concerning  the  taxation  of  dip- 
lomatic officers,  infra,  §  440  ;   concerning  that  of  consular  officers,  infra,  §  472. 

3  See,  for  example,  Hoyt  v.  Commissioners  of  Taxes,  23  N.  Y.  224.  Con- 
versely, a  State  cannot  lawfully  tax  immovable  property  in  a  foreign  coun- 
try. Mr.  Root,  Secy,  of  State,  to  Mr.  Leishman,  American  Minister  to  Tur- 
key, Feb.  27,  1906,  For.  Rel.  1906,  II,  1408. 

*  Cf.  how  this  principle  has  been  worked  out  and  applied,  for  example,  in 
Hays  V.  Pacific  Mail  Steamship  Co.,  17  How.  596 ;  Pullman's  Palace  Car 
Co.  V.  Pennsylvania,  141  U.  S.  18  ;  Blackstone  v.  Miller,  188  U.  S.  189  ;  Union 
Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194 ;  Ayer  &  Lord  Tie  Co. 
V.  Kentucky,  202  U.  S.  409 ;  New  York  Central  Railroad  v.  Miller,  202  U.  S. 
584 ;  Union  Tank  Line  Co.  v.  Wright,  249  U.  S.  275.  Also  cf.  Beale's  Cases 
on  Conffict  of  Laws,  III,  Summary,  §  35 ;  Lorenzen's  Cases  on  Conflict  of 
Laws,  291,  note;   Harvard  Law  Rev.,  XX,  138,  note. 

362 


TAXATION  [§  206 

in  ascertaining  whether  a  particular  chattel  falls  within  such  a 
category,  and  is  to  be  so  regarded.  Normally,  the  problem  is 
oftentimes  one  of  fact  rather  than  of  law.  It  has  been  held,  how- 
ever, that  a  vessel  having  no  permanent  location  within  another 
State  of  the  Union,  possesses  an  artificial  situs  for  purposes  of 
taxation  at  the  domicile  of  the  owner.^  It  is  acknowledged  that 
moneys,  notes  and  evidences  of  credit  may  be  taxed  in  the  State 
where  they  are  employed  and  found,  irrespective  of  the  legal  home 
of  the  owner.^  It  has  been  declared,  however,  that  the  mere 
presence  of  notes  within  a  State  which  is  not  the  domicile  of  the 
owner  does  not  bring  the  debts  of  which  they  are  the  written 
evidence  within  the  taxing  power  of  that  State.^ 

§  206.  The  Same. 

The  domicile  of  an  individual  within  its  limits  has  been  deemed 
to  justify  a  State  in  taxing  him  upon  shares  owned  by  him  in 
foreign  corporations  doing  no  business  within  its  territory,  on 
the  theory  that  such  intangible  interests  of  the  shareholder  may 
be  justly  regarded,  for  purposes  of  taxation,  as  belonging  to,  or 
having  a  so-called  situs  within,  the  State  of  the  domicile.^  Again, 
it  is  declared  to  be  the  right  of  a  State  to  tax  a  person  domiciled 
within  its  territory,  on  moneys  derived  from  business  in  a  foreign 
State  and  deposited  with  a  bank  therein.  Such  a  tax  appears  to 
be  regarded  as  one  of  a  personal  character,  rather  than  as  a  tax 
on  property.^ 

Doubtless  the  foregoing  principles  would  be  judicially  applied 
in  the  United  States  to  property  owTied  by  aliens  as  well  as  na- 
tionals. It  is  unlikely  that  in  American  tribunals,  the  additional 
element  of  the  foreign  nationality  of  the  owner  would  be  deemed 
to  lessen  the  reasonableness  of  a  tax,  otherwise  sustainable  on  the 
theory  of  domicile,  as  in  the  case  of  a  pure  chose  in  action,  or  on 
the  theory  of  the  place  of  abiding,  in  the  case  of  corporeal  property. 

1  Southern  Pacific  Co.  v.  Kentucky,  222  U.  S.  63,  where  the  principle  stated 
in  the  text  was  applied  to  ships  owned  by  the  Plaintiff  in  Error,  itself  incor- 
porated in  Kentucky',  when  the  vessels  were  enrolled  at  the  port  of  New  York, 
engaged  in  the  Atlantic  coastwise  trade,  and  had  never  touched  at  any  Ken- 
tucky port.  They  were  deemed  to  be  taxable  in  Kentucky  as  the  property 
of  a  Kentucky  corporation. 

2  New  Orleans  v.  Stempel,  175  U.  S.  309 ;  Metropolitan  Life  Ins.  Co.  v. 
New  Orleans,  205  U.  S.  395  ;  Burke  v.  Wells,  208  U.  S.  14 ;  De  Ganay  v.  Led- 
erer,  250  U.  S.  376,  where  the  property  was  owned  by  a  non-resident  alien. 

3  Buck  V.  Beach,  206  U.  S.  392. 

*  Hawley  v.  Maiden,  232  U.  S.  1 ;  also  Darnell  v.  Indiana,  226  U.  S.  390: 
Kidd  V.  Alabama,  188  U.  S.  730. 

'  Fidelity  &  Columbia  Trust  Co.  v.  Louisville,  245  U.  S.  54. 

363 


§  206]     GENERAL    RIGHTS   OF    PROPERTY    AND    CONTROL 

Difficulties  which  have  perplexed  American  courts  in  determining 
where  property  of  various  kinds  may  be  lawfully  taxed  as  such 
have  commonly  been  of  an  essentially  domestic  nature ;  and  if 
the  effort  to  find  the  solution  has  at  times  betrayed  confusion 
of  thought,  or  apparent  inconsistency,  probably  the  result  al- 
though commonly  favorable  to  the  assertion  of  the  taxing  power 
by  the  territorial  sovereign,  has  not  been  one  which  would  be  re- 
garded by  foreign  States  when  applied  to  property  of  their  na- 
tionals as  internationally  illegal.^ 

A  State  may  lawfully  tax  all  persons  as  such  who,  regardless 
of  their  nationality,  have,  by  reason  of  the  closeness  of  their  con- 
nection with  its  territory,  established  such  a  relationship  with  it 
as  to  justify  the  inference  that  they  are  residents  thereof.-  Such 
a  relationship  does  not  require  the  acquisition  of  a  domicile  as 
that  term  is  understood  either  in  America  or  England.  It  is 
founded  rather  on  the  sheer  fact  of  residence.^  Thus,  an  American 
citizen  who  had  satisfied  every  requirement  of  the  common  law 
for  the  retention  of  a  legal  home  in  American  territory,  might  still, 
in  consequence  of  long-continued  residence  in  a  foreign  country,  be 
there  subjected  not  unreasonably  to  the  payment  of  an  income  tax."* 

^  These  difficulties  seem  to  have  been  due  in  part,  first,  to  the  belief  that 
corporeal  property  is,  under  any  circumstances,  taxable  as  such  in  a  place 
where  it  is  not  to  be  found,  and  where,  in  consequence,  it  can  not  be  levied 
upon,  and  secondly,  to  the  beUef  that  although  notes  and  other  evidences  of 
indebtedness  may  be  treated  as  chattels  and  taxed  accordingly  as  such,  there 
remains  between  them  and  the  domicile  of  the  owner  a  peculiar  relationship 
serving  at  times  to  restrict  the  State  where  they  are  found  in  dealing  with 
them  as  assets  belonging  within  its  domain,  and  at  others,  to  extend  the 
theoretical  control  of  the  State  of  the  domicile  over  them  as  though  they 
were  in  fact  within  its  limits.  See,  in  this  connection,  dissenting  opinion  of 
Mr.  .Justice  Day,  in  Buck  v.  Beach,  206  U.  S.  392,  409.  It  is  beUeved  that 
tangible  property,  embracing  all  that  possesses  a  corporeal  character,  is  to 
be  taxed  as  such  only  where  it  is  to  be  foimd  and  can  be  levied  upon  ;  and  that 
difficulties  in  determining  whether  it  strictly  belongs  where  it  is  found,  hardly 
justify  recourse  to  a  fiction  even  as  a  means  of  preventing  property  to  escape 
taxation  altogether. 

It  is  probable,  however,  that  as  a  practical  matter,  any  objections  on 
such  a  score  which  might  be  raised  by  an  aggrieved  foreign  State,  could  be  met 
substantially  by  the  suggestion  that  the  particular  tax  imposed  was  of  a  per- 
sonal character  rather  than  a  tax  on  property,  and  that  the  connection  of  the 
owner  with  the  domain  of  the  territorial  sovereign  sufficed  to  subject  him  to 
the  imposition  of  it. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Gushing,  Minister  to  Spain,  Jan.  12, 
1876,  MS.  Inst.  Spain,  XVII,  432,  Moore,  Dig.,  II,  63,  64. 

'  This  is  well  illustrated  by  the  exaction  by  Japan  of  an  income  tax  from 
foreign  missionaries.  For.  Rel.  1900,  760-762 ;  see,  also,  Mr.  Fish,  Secy,  of 
State,  to  Mr.  Davis,  Minister  to  Germany,  Nov.  21,  1874,  For.  Rel.  1875,  I, 
488^89;  Moore,  Dig.,  II,  58-60.  Compare  the  attempt  of  the  authorities 
of  Frankfort-on-the-Main,  in  1887,  to  levy  an  income  tax  on  Mrs.  S.  R.  Honey, 
the  wife  of  an  American  citizen,  domiciled  in  the  United  States,  For.  Rel. 
1888,  I,  623,  630,  642,  650,  655,  Moore,  Dig.,  II,  60-61. 

*  Memorandum  of  law  office'-  of  Department  of  State,  March  1,  1909,  For. 

364 


PERSONAL  TAXES  [§  206 

Personal  taxes  levied  upon  individuals  subject  thereto  may 
assume  a  variety  of  forms.  When  they  are  levied  upon  aliens, 
the  law  of  nations  appears  to  offer  few  restrictions  beyond  the 
possible  requirement  that  the  tax  be  in  a  broad  sense  uniform  and 
general  in  its  operation.  Such  individuals  may  be  subjected,  for 
example,  to  the  payment  of  a  poll  tax,^  or  of  an  income  tax ;  ^  and 
in  the  latter  case  the  tax  may  doubtless  be  assessed  according  to 
the  amount  of  income  from  whatsoever  source  derived,  and  whether 
or  not  from  assets  outside  of  the  taxing  State.^  It  may  be  doubted, 
moreover,  whether  any  rule  of  international  law  forbids  dis- 
crimination on  grounds  of  alienage.  When  a  tax  is  levied  upon  the 
income  of  a  non-resident  alien,  it  is  obviously  in  the  nature  of  a  tax 
upon  his  property  within  the  control  of  the  territorial  sovereign 
rather  than  a  personal  tax.'^ 

According  to  American  opinion  the  State  of  the  domicile  of  a 
decedent  may  tax  the  succession  to  the  universitas  as  incidental 

Rel.  1909,  285.  Compare  Mr.  Porter,  Acting  Secy,  of  State,  to  Mr.  Emmet, 
June  8,  1885,  For.  Rel.  1885,  848,  Moore,  Dig.,  IV,  22,  where  the  statement 
as  tcPi>rinciple  is  believed  to  place  undue  stress  upon  domicile. 

^  Opinion  of  Justices,  7  Mass.  523  ;  Opinion  of  Justices,  8  N.  H.  573 ;  Kuntz 
V.  Dividson  County,  6  Lea  (Tenn.)  65. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Davis,  Minister  to  Germany,  Nov.  21, 
1874,  For.  Rel.  1875,  I,  488-489,  Moore,  Dig.,  II,  58-60.  As  to  the  pro- 
cedure to  be  followed  bj^  an  American  citizen  abroad  who  alleges  that  he  is 
not  properly  liable  to  the  e.xaction  of  an  income  tax  in  the  countrj^  of  his 
sojourn,  cf.  Mr.  Hay,  Secy,  of  State,  to  Mr.  Harris,  Minister  to  Austria-Hun- 
gary, May  31,  1899,  For.  Rel.  1899,  50;  Moore,  Dig.,  II,  61  ;  also,  Mr.  Bay- 
ard, Secy,  of  State,  to  Mr.  Honey,  Mar.  21,  1887,  For.  Rel.  1888, 1,  631,  Moore, 
Dig.,  II,  61,  note. 

See  Memorandum  of  the  Solicitor  of  the  Department  of  State,  on  the  pay- 
ment of  income  taxes  by  American  Consular  Officers  in  Great  Britain,  March 
1,  1909,  For.  Rel.  1909,  285;  correspondence  with  Germany  in  1906,  concern- 
ing the  exemption  of  American  citizens  in  the  territory  of  that  Empire  from 
the  payment  of  church  taxes,  For.  Rel.  1906,  I,  658-660 ;  correspondence 
with  Haiti  in  1907,  respecting  the  requirement  of  that  State  compelling  for- 
eign firms  to  take  out  retail  licenses  in  lieu  of  the  enforcement  of  the  Haitian 
tax  law  of  1876,  For.  Rel.  1907,  II,  728-742. 

In  1910,  the  Department  of  State,  noting  that  several  European  Powers 
opposed  the  collection  of  a  supplemental  income  tax  from  foreigners  engaged 
in  business  in  Bulgaria,  on  the  ground  that  by  the  operation  of  the  capitula- 
tions existing  under  the  Turkish  regime  which  were  "  still  in  force  in  Bulgaria", 
the  government  of  that  country  lacked  the  right  to  enforce  the  collection  of 
any  new  taxes  upon  foreign  residents  without  the  consent  of  their  respective 
governments,  gave  its  approval  to  representations  made  by  the  American 
Charge  d'Affaires,  that  American  citizens  be  accorded  the  same  treatment 
as  that  applied  to  other  foreigners  engaged  in  business  in  Bulgaria.  For.  Rel. 
1910,  128. 

3  Foreign  Relations  1900,  760-762. 

"  Thus,  according  to  the  Act  of  Sept.  8,  1916,  39  Stat.  756,  provision  was 
made  for  the  taxation  upon  the  entire  net  income  received  in  the  preceding 
calendar  year  from  all  sources  within  the  United  States  "by  every  individual, 
a  non-resident  alien,  including  interest  on  bonds,  notes,  or  other  interest- 
bearing  obligations  of  residents,  corporate  or  otherwise."  See.  in  this  connec- 
tion, De  Ganay  i'.  Lederer,  250  U.  S.  376,  sustaining  a  tax  under  the  Income 

365 


§  206]     GENERAL   RIGHTS   OP   PROPERTY   AND   CONTROL 

to  the  persona  of  the  decedent.^  This  principle  would  doubtless 
be  applied  in  the  case  of  an  alien  who  had  established  a  legal  home 
in  the  United  States.  It  could  not,  however,  logically  be  applied 
where  an  alien  decedent,  although  residing  therein,  was  acknowl- 
edged to  have  retained  a  legal  home  in  the  country  of  his  nation- 
ality. It  is  the  power  of  the  State  of  the  domicile  to  control  the 
succession  as  such  in  connection  with  the  probate  of  the  estate  of 
a  decedent  which  justifies  the  claim  of  that  State  to  tax  the  suc- 
cession. On  the  other  hand,  it  is  judicially  declared  that  the 
power  of  a  State  to  control  the  transfer  of  the  assets  of  the  estate 
of  a  decedent  within  its  domain  at  the  time  of  his  death,  embracing 
both  chattels  and  debts  due  the  decedent  (when  the  debtors  are 
within  its  reach),  justifies  it  in  taxing  the  transfer  which  in  legal 
contemplation  is  subject  to  its  control.^  Obviously  this  principle 
is  applicable  in  the  case  of  the  estate  of  a  non-resident  regardless 
of  his  nationality.^ 

Tax  Law  of  Oct.  3,  1913,  upon  the  income  from  certain  stocks,  bonds,  and 
mortgages  owned  by  a  non-resident  alien,  and  in  the  hands  of  his  agent  in  the 
United  States. 

It  should  be  observed  that  according  to  the  Act  of  Oct.  3,  1917,  40  Stat. 
337,  it  was  declared  that  the  existing  Income  Tax  Law  should  not  be  con- 
strued as  taxing  the  income  of  foreign  governments  received  from  invest- 
ments in  the  United  States  in  stocks,  bonds,  or  other  domestic  securities, 
owned  by  such  foreign  governments,  or  from  interest  on  deposits  in  banks 
in  the  United  States  of  moneys  belonging  to  foreign  governments. 

1  Frothingham  v.  Shaw,  175  Mass.  59;  Eidman  v.  Martinez,  184  U.  S.  578; 
Blackstone  v.  Miller,  188  U.  S.  189,  204 ;  BuUen  v.  Wisconsin,  240  U.  S.  625, 
631,  where  it  was  said  by  Mr.  Justice  Holmes  in  the  course  of  the  unanimous 
opinion  of  the  Court :  "As  the  States  where  the  property  is  situated,  if  gov- 
erned by  the  common  law,  generally  recognize  the  law  of  the  domicil  as  de- 
termining the  succession,  it  may  be  said  that,  in  a  practical  sense  at  least, 
the  law  of  the  domicil  is  needed  to  establish  the  inheritance.  Therefore  the 
inheritance  may  be  taxed  at  the  place  of  domicil,  whatever  the  limitations 
of  power  over  the  specific  chattels  may  be,  as  is  especially  plain  in  the  case  of 
contracts  and  stock."  See,  also,  Fidelity  &  Columbia  Trust  Co.  v.  Louis- 
ville, 245  U.  S.  54,  59. 

2  Blackstone  v.  Miller,  188  U.  S.  189,  205,  where  it  was  said  :  "If  the  trans- 
fer of  the  deposit  necessarily  depends  upon  and  involves  the  law  of  New  York 
for  its  exercise,  or,  in  other  words,  if  the  transfer  is  subject  to  the  power  of  the 
State  of  New  York,  then  New  York  may  subject  the  transfer  to  a  tax." 

^  It  is  not  believed  that  a  local  statute  imposing  a  higher  duty  on  legacies 
made  to  non-resident  aliens  than  upon  those  to  residents  of  the  State  neces- 
sarily violates  any  requirement  of  international  law.  See  Mager  v.  Grima, 
8  How.  490,  where  a  statute  of  Louisiana  imposed  a  tax  of  ten  per  cent  on 
legacies,  when  the  legatee  was  neither  a  citizen  of  the  United  States,  nor  domi- 
ciled in  Louisiana.  Cf.,  also,  Frederickson  v.  Louisiana,  23  How.  445.  Treaty 
provisions  may,  however,  raise  obstacles,  especially  where  the  property  con- 
cerned is  land  and  is  devised  to  non-resident  aliens.  See,  for  example.  Suc- 
cession of  Rixner,  48  La.  Ann.  552,  Moore,  Dig.,  IV,  24 ;  McKeown  v.  Brown, 
167  Iowa,  489.  It  should  be  observed,  however,  that  the  contractual  limita- 
tions established  by  treaty  may  be  "manifestly  intended  not  to  control  or  limit 
the  right  of  either  of  the  governments  to  deal  with  its  own  citizens  and  their 
property  within  its  borders",  but  rather  be  "solely  intended  to  restrict  the 
power  of  both  of  the  governments  to  deal  with  citizens  of  the  other  and  their 

366 


CUSTOMS  [§  207 

(d) 
§  207.    Customs.  ^ 

In  order  to  protect  its  revenues  and  its  industries,  as  well  as 
the  morals  of  the  inhabitants  of  its  domain,  a  State  may  control 
and  regulate  imports  into  its  territory,  and  in  so  doing,  apply 
such  restrictions  as  it  may  see  fit.^  Incidentally,  the  territorial 
sovereign  may  impose  appropriate  penalties  upon  persons  who  un- 
lawfully attempt  to  violate  its  prohibitory  laws.  Such  penalties 
may  assume  the  form  of  the  confiscation  of  articles  of  which 
the  importation  is  forbidden,  or  the  fine  or  imprisonment  of  an 
offender.^ 

Tonnage  duties  may  be  levied  on  vessels  from  foreign  ports,^ 
or  upon  foreign  vessels ;  while  additional  duties  may  be  charged 
upon  articles  imported  in  foreign  vessels.^  The  alien  ownership  of 
an  article  may  also  be  the  ground  for  the  imposition  of  a  duty. 
In  practice,  however,  it  is  the  foreign  origin  or  means  of  transport- 
ation, rather  than  the  foreign  ownership  of  property,  which  com- 
monly affords  the  basis  of  the  exaction  of  duties. 

A  State  may  also  levy  discriminating  duties,  that  is,  "duties  in 
excess  of  what  would  be  charged,  in  the  particular  country,  on  one 
of  its  own  vessels  and  the  cargo  imported  in  it."  ^     It  has  been 

property  within  its  dominions."  Opinion  of  Chief  Justice  White  in  behalf 
of  the  Court  in  Petersen  v.  Iowa,  245  U.  S.  170,  173,  affirming  In  re  Estate 
of  Anderson,  166  Iowa,  617 ;  Duus  v.  Brown,  245  U.  S.  176,  affirming  In  re 
Estate  of  Peterson,  168  Iowa,  511.  Contra,  In  re  Stixrud's  E.state,  58  Wash- 
ington, 339,  109  Pac.  343. 

'  Mr.  Fish,  Secv.  of  State,  to  Mr.  W^illiamson,  Minister  to  Central  America, 
Feb.  15,  1875,  MS.  Inst.  Costa  Rica,  XVII,  232,  Moore,  Dig.,  II,  66 ;  Mr. 
Hay,  Acting  Secv.  of  State,  to  Mr.  Chen  Lan  Pin,  Aug.  23,  1880,  For.  Rel. 
1880,  304,  305,  Moore,  Dig.,  II,  72,  73. 

2  See,  for  example,  provisions  of  the  Act  of  Oct.  3,  1913,  with  reference  to 
the  forfeiture  of  obscene  books,  lottery  tickets,  etc.,  sought  to  be  imported 
into  the  United  States,  and  also  the  penalties  imposed  by  the  Act  upon  an  offi- 
cer, agent  or  employee  of  the  Government,  knowingly  aiding  or  abetting 
the  violation  of  the  law  prohibiting  the  importation  of  such  articles.  38  Stat. 
194  and  195. 

See  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Bingham,  M.  C,  Jan.  11,  1890,  176 
MS.  Dom.  Let.  86,  Moore,  Dig.,  II,  68.  Also  For.  Rel.  1901,  252-260,  con- 
cerning complaint  by  a  naturalized  American  citizen  of  the  confiscation  by 
Guatemala  of  silver  belonging  to  him.     Moore,  Dig.,  II,  69. 

2  Report  of  Mr.  Bavard,  Secv.  of  State,  to  the  President  regarding  Sec- 
tion 14  of  the  Act  of  June  26,  1884,  and  the  Act  of  June  19,  1886,  relative  to 
the  imposition  of  tonnage  and  lighthouse  dues  on  vessels  from  certain  foreign 
ports  or  places,  and  the  suspension  of  the  collection  thereof,  Jan.  14,  1889, 
For.  Rel.  1888,  II,  1857-1864.  Moore,  Dig.,  II,  74.  See,  also.  Section  36, 
Tariff  Act  of  Aug.  5,  1909,  on  Imports  into  the  United  States. 

^  See,  for  example,  the  discriminating  duty  on  goods  imported  in  foreign 
vessels,  in  the  Act  of  Oct.  3,  1913,  38  Stat.  195,  and  the  limitations  with 
respect  to  its  application.  Also,  Air.  Hav,  Acting  Secy,  of  State,  to  Mr. 
Chen  Lan  Pin,  Aug.  23,  1880,  For.  Rel.  1880,  304,  305,  Moore,  Dig.,  II,  72,  73. 

'  J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  172. 

367 


§  207]     GENERAL    RIGHTS   OF   PROPERTY    AND    CONTROL 

declared  that  since  the  Act  of  Congress  of  May  24,  1828,  the 
United  States  has  made  "a  standing  offer  .  .  .  for  the  reciprocal 
abolition  of  all  discriminating  duties,  without  regard  to  the  origin 
of  the  cargo  or  the  port  from  which  the  vessel  came."  ^  Arrange- 
ments in  pursuance  of  this  Act  have  been  effected  by  treaty,^  and 
by  executive  proclamation  suspending  the  collection  of  discrimi- 
nating charges.^ 

No  rule  of  international  law  prevents  a  State  from  entering 
into  reciprocal  commercial  arrangements  with  any  other,  provid- 
ing, for  example,  for  a  reduction  in  the  existing  tariff  rate  on  special 
articles  to  be  imported  into  the  territory  of  one  of  the  contracting 
parties  from  that  of  the  other ;  ^  or  from  concluding  a  treaty 
giving  to  a  particular  State  certain  privileges  of  importation  which, 
by  the  terms  of  the  agreement,  are  not  to  be  conceded  to  any 
other.^ 

The  suddenness  of  the  change  of  the  tariff  laws  of  a  State  does 
not  necessarily  justify  complaint  by  foreign  powers  whose  nationals 
may  be  thereby  adversely  affected.  That  the  territorial  sovereign 
may  at  any  time  exercise  the  right  to  amend  its  tariff,  is  always 
to  be  anticipated.^  The  situation  is  otherwise,  however,  where  a 
State  has  given  any  class  of  aliens  special  reason  to  believe  that 
no  change  is  to  be  anticipated  within  a  certain  period  of  time. 
The  United  States  has,  under  special  circumstances,  protested 
against  the  repeal  of  such  laws  without  reasonable  notice.^     Ar- 

1  J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  173.  For  the  Act  of 
May  24,  1828,  see  4  Stat.  308,  Rev.  Stat.  §  4228.  The  Act  as  amended  July 
24,  1897,  30  Stat.  214,  specified  the  conditions  upon  which  the  President  might 
suspend  discriminating  duties.     See,  in  this  connection,  Moore,  Dig.,  II,  70-72. 

2  See,  for  example,  commercial  arrangement  between  the  United  States  and 
Germany,  July  10,  1900,  in  conformity  with  the  Customs  Act  of  the  United 
States,  of  July  24,  1897,  Mallov's  Treaties,  I,  558 ;  Arts.  VII  and  VIII  of 
treaty  with  Spain,  July  3,  1902,  Malloy's  Treaties,  II,  1703. 

3  Mr.  Hay,  Acting  Secy,  of  State,  to  Mr.  Chen  Lan  Pin,  Aug.  23,  1880, 
For.  Rel.  1880,  304,  Moore,  Dig.,  II,  72. 

*  Commercial  convention  with  Cuba,  of  Dec.  11,  1902,  and  approved  by 
Act  of  Congress  of  Dec.  17,  1903,  Malloy's  Treaties,  I,  353.  See  United 
States  V.  American  Sugar  Refining  Co.,  202  U.  S.  563,  in  relation  to  the  date 
when  the  agreement  took  effect. 

^  Commercial  agreement  with  the  Hawaiian  Islands,  Jan.  30,  1875,  Mai- 
lov  ^  ' I ^Fpo t"if*s    T    Ql  ^ 

6  Thus,  the'  Tariff  Act  of  Aug.  5,  1909,  36  Stat.  118,  provided,  in  Sec.  42, 
that  except  as  otherwise  therein  specially  provided,  the  Act  should  take  effect 
the  day  following  its  passage.  See  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr. 
Furniss,  Minister  to  Haiti,  Sept.  22,  1906,  For.  Rel.  1906,  ll,  883. 

7  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Hall,  Minister  to  Central  Amer- 
ica, Aug.  20,  1884,  For.  Rel.  1884,  41,  Moore,  Dig.,  II,  67  ;  also,  case  in  Guate- 
mala referred  to  in  correspondence  contained  in  For.  Rel.  1888,  I,  159-163, 
Moore,  Dig.,  II,  68.  See  objections  made  by  the  United  States  in  1910,  and 
1911,  to  the  levying  by  Germany  of  an  export  duty  on  potash  salts,  For.  Rel. 
1911,  198-243. 

368 


INDUSTRIAL  PROPERTY  [§  208 

bitrary  action  in  the  exaction  of  duties  from  aliens  may,  as  in  any 
case  of  the  harsh  treatment  of  such  individuals,  afford  just  ground 
of  complaint  in  their  behalf.^ 

(e) 
§  208.   Industrial  Property. 

A  State  is  free  to  fix  the  process  by  which  rights  of  industrial 
property  may  be  acquired  within  its  territory,  and  also  to  de- 
termine what  persons  may  enjoy  the  privilege  of  acquiring  them.^ 
In  the  absence  of  treaty,  there  may  doubtless  be  lawful  discrimi- 
nations against  aliens.  The  territorial  sovereign  is  not  obliged  to 
issue  patents  for  inventions  or  designs  to  the  nationals  of  a  foreign 
State,  or  to  permit  them  to  register  trade-marks.  Strongest 
reasons  of  policy  may,  however,  prevent  the  exercise  of  this  pre- 
rogative. The  legislation  of  the  United  States,  with  respect  to 
patents  for  inventions  and  designs,  has  extended  its  benefits  to 
the  inventors  of  every  nationality,  without  reference  to  treaties.^ 

The  existing  statutory  law  provides  that  the  owner  of  a  trade- 
marK  used  in  commerce  with  foreign  nations,  or  among  the 
several  States,  or  with  Indian  tribes,  provided  he  be  domiciled 
within  the  territory  of  the  United  States,  or  reside  in  or  be  located 

1  Mr.  Root,  Secv.  of  State,  to  Mr.  Furniss,  Minister  to  Haiti,  Oct.  23, 
1906,  For.  Rel.  1906,  II,  891 ;  Mr.  Fish,  Secy,  of  State,  to  Gen.  Sickles,  Min- 
ister to  Spain,  March  21,  1873,  For.  Rel.  1873,  II,  932,  Moore,  Dig..  II,  319; 
Mr.  J.  Davis,  Acting  Secv.  of  State,  to  Mr.  Hamlin,  Minister  to  Spain,  Sept. 
4,  1882,  For.  Rel.  1882,  478,  Moore,  Dig.,  II,  319 ;  Mr.  Frelinghuysen,  Secy, 
of  State,  to  Mr.  Morgan,  Minister  to  Mexico,  Jan.  31,  1883,  MS.  Inst.  Mexico, 
XX,  568,  Moore,  Dig.,  II,  323 ;  Same  to  same.  Feb.  20,  1883,  For.  Rel.  1883, 
625,  Moore,  Dig.,  II,  324.  See  objections  of  Mr.  Evarts,  Secy,  of  State,  in 
1879,  to  certain  Haitian  consular  charges  in  the  United  States  "so  consider- 
able as  virtually  to  be  an  export  tax",  in  despatches  to  Mr.  Preston,  Haitian 
Minister,  Jan.  22,  1879,  and  to  Sir  E.  Thornton,  British  Mmister,  July  14, 
1879,  contained  respectively  in  For.  Rel.  1879,  586  and  501,  Moore.  Dig.,  II, 
320  and  322. 

2  See,  for  example,  with  respect  to  patents,  Mr.  Frelinghuysen,  Secy,  of  State, 
to  Mr.  Mann,  Dec.  27,  1884,  153  MS.  Dom.  Let.  515,  Moore,  Dig.,  II,  34; 
also  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Avery,  May  4,  1887,  164  MS.  Dom. 
Let.  78,  Moore,  Dig.,  II,  34. 

3  Rev.  Stat.,  §4886,  amended  March  3,  1897,  29  Stat.  692,  U.  S.  Comp. 
Stat.  1918,  §  9430;  also  Rev.  Stat.,  §4929,  amended  May  9,  1902,  32  Stat. 
193,  U.  S.  Comp.  Stat.  1918.  §  9475. 

Cf.  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Herbert,  British  ChargC^,  Jan.  18, 
1889,  MS.  Notes  to  Great  Britain,  XXI,  38,  Moore,  Dig.,  II,  42,  43;  also 
memorandum  from  the  American  Ambassador  to  the  German  Government, 
Oct.  19,  1894,  For.  Rel.  1895,  I,  .529,  Moore,  Dig.,  II,  40. 

See,  also,  agreement  by  exchange  of  notes  June  22  and  Jime  26,  1906,  be- 
tween the  United  States  and  Denmark,  in  which  it  was  formally  declared 
that  "under  the  laws  of  the  United  States,  it  is  not  necessary,  in  order  to  se- 
cure the  protection  of  Danish  industrial  designs  or  models,  that  the  articles 
thev  represent  shall  be  manufactured  in  the  United  States."  For.  Rel.  1906, 
I.  533. 

369 


208]     GENERAL   RIGHTS   OF   PROPERTY    AND    CONTROL 

in  any  foreign  country,  which,  by  treaty,  convention,  or  law, 
affords  similar  privileges  to  the  citizens  of  the  United  States, 
may  obtain  registration  of  such  trade-mark,  by  complying  with 
certain  specified  requirements.^ 

The  United  States  adhered  to  the  Convention  for  International 
Protection  of  Industrial  Property,  concluded  at  Paris,  March  20, 
1883,^  and  was  a  party  to  the  Additional  Act  concluded  at  Brussels, 
December  14, 1900.^  It  was  also  a  party  to  the  Industrial  Property 
Convention  of  June  2,  1911,  and  to  the  final  protocol  of  that  date.^ 
According  to  the  international  arrangement  established  thereby, 
the  nationals  of  the  contracting  parties  are  accorded  the  right  to 
enjoy  in  all  of  the  other  countries  of  the  Industrial  Union,  "with 
regard  to  patents  of  invention,  models  of  utility,  industrial  de- 
signs or  models,  trade-marks,  trade  names,  the  statements  of  place 
of  origin,  suppression  of  unfair  competition,  the  advantages  which 
the  respective  laws  now  grant  or  may  hereafter  grant  to  the  citizens 
of  that  country."  ^  It  is  provided  also  that  nationals  of  States  w^hich 
do  not  form  part  of  the  Union,  who  are  domiciled  or  own  effective 
and  bona  fide  industrial  or  commercial  establishments  in  the  ter- 
ritory of  any  of  the  countries  of  the  Union,  are  to  be  assimilated  to 
the  subjects  or  citizens  of  the  contracting  parties.® 

1  Act  of  Feb.  18,  1909,  35  Stat.  628,  U.  S.  Comp.  Stat.  1918,  §  9485.  Ac- 
cording to  the  Act  of  Feb.  20,  1905,  33  Stat.  725,  U.  S.  Comp.  Stat.  1918, 
§  9488,  the  applicant  for  registration,  or  for  renewal  of  registration  of  a  trade- 
mark, "who  is  not  domiciled  within  the  United  States",  is  obUged,  before  the 
issuance  of  a  certificate  of  registration  to  designate  a  person  residing  within 
the  United  States  for  service  of  process  or  notice  in  respect  to  proceedings 
affecting  the  right  of  ownership  of  the  trade-mark. 

Concerning  the  interpretation  of  the  Act  of  March  3,  1881,  21  Stat.  502, 
see  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Herbert,  British  Charge,  Jan.  18, 
1889,  MS.  Notes  to  Great  Britain,  XXI,  38,  Moore,  Dig.,  II,  42 ;  also  Mr. 
Hay,  Secy,  of  State,  to  the  Secy,  of  the  Interior,  Nov.  4,  1898,  232  MS.  Dom. 
Let.  466,  Moore,  Dig.,  II,  36. 

2  Malloy's  Treaties,  II,  1935. 

3  Malloy's  Treaties,  II,  1945 ;  Pelletier,  Michel,  &  Vidal-Naquet,  La 
convention  d' Union  pour  la  protection  de  la  propriete  industrielle  du  20  mars 
1883  et  les  conferences  de  revision  posteriejires,  Paris :    1902. 

4  38  Stat.  1645  (English  translation  1658),  Charles'  Treaties,  367.  Con- 
cerning the  interpretation  of  Art.  I  of  the  treaty  between  the  United  States 
and  Austria-Hungary  of  Nov.  25,  1871,  see  J.  &  P.  Baltz  Brewing  Co.  v.  Kaiser- 
brauerei,  Beck  &  Co.,  74  Fed.  222 ;  Saxlehner  v.  Eisner  &  Mendelson  Co.,  179 
U.  S.  19. 

5  Art.  II.  It  is  declared  in  the  same  Article  that  the  nationals  of  each  con- 
tracting party  shall  have  in  all  of  the  other  countries  of  the  Union  the  same 
protection  as  the  nationals  of  those  countries,  and  the  same  legal  remedies 
against  any  infringements  of  their  rights,  provided  they  comply  with  the 
formalities  and  requirements  imposed  by  the  national  laws  of  each  State  upon 
its  own  citizens.  It  is  added  that  "  any  obligation  of  domicile  or  of  establish- 
ment in  the  country  where  the  protection  is  claimed  shall  not  be  imposed  on 
the  members  of  the  Union." 

6  Art.  III.     According  to  Art.  286  of  the  treaty  of  peace  with  Germany, 

370 


INDUSTRIAL  PROPERTY  [§  208 

Reasons  of  policy  encourage  States  to  extend  the  benefits  of 
their  copyright  laws  to  aliens.  The  United  States  has  entered 
into  numerous  agreements  appropriate  to  such  an  end.^  It  be- 
came a  party  to  the  Copyright  Convention  concluded  at  the  Fourth 
International  American  Conference  at  Buenos  Aires,  August  11, 
1910,  providing  for  the  reciprocal  recognition  of  copyrights  granted 
by  the  signatory  States.^ 

The  legislation  of  the  United  States  extends  the  benefit  of  copy- 
right to  the  work  of  an  author  or  proprietor  who  is  an  alien,  only 
when  such  individual  is  domiciled  within  the  United  States  at  the 
time  of  the  first  publication  of  his  work ;  or  when  the  State  of 
which  he  is  a  national,  either  by  agreement  or  law,  grants  to  citi- 
zens of  the  United  States  the  benefit  of  copyright  on  substantially 
the  same  basis  as  to  its  own  nationals,  or  copyright  protection 
substantially  equal  to  the  protection  secured  to  a  foreign  author 
under  the  Act  of  Congress  or  by  treaty ;  or  when  that  State  is  a 
party  to  an  international  agreement  providing  for  reciprocity  in 
the  granting  of  copyright,  by  the  terms  of  which  the  United  States 
ma^',  at  its  pleasure,  become  a  party  thereto.^  It  is  provided 
that  the  existence  of  such  reciprocal  conditions  is  to  be  determined 
by  the  President  by  proclamation  made  from  time  to  time,  as  the 
purposes  of  the  Act  may  require.^ 

An  amendatory  Act  of  December  18,  1919,  provided  that  "all 

of  June  28,  1919,  it  was  agreed  that  the  convention  of  June  2,  1911,  should 
again  come  into  effect,  as  from  the  coming  into  force  of  the  treaty,  subject  to 
the  exceptions  and  restrictions  resulting  from  the  latter.  C/.,  also.  Arts.  306- 
311  with  respect  to  industrial  property. 

1  See,  for  example,  Copyright  Convention  between  the  United  States  and 
Japan,  of  Nov.  10,  1905,  and  correspondence  relating  thereto.  For.  Rel.  1906, 
II,  968-986,  Malloy's  Treaties,  I,  1037;  Convention  on  Literary  and  Ar- 
tistic Copyrights,  concluded  at  the  Second  International  American  Confer- 
ence Jan.  27,  1902,  Malloy's  Treaties,  II,  2058. 

2  This  convention  was  ratified  by  the  President,  March  12,  1911,  and  was 
proclaimed  by  him  July  13,  1914,  ratification  having  been  deposited  with  the 
Government  of  Argentina,  May  1,  1911,  38  Stat.  1785.  See  Herbert  A.  Howell, 
"International  Copjright  Relations  of  the  United  States",  Yale  Law  J., 
XXVII,  348. 

3  Act  of  March  4,  1909,  §  8,  35  Stat.  1077,  U.  S.  Comp.  Stat.  1918,  §  9524. 
See  Report  of  Mr.  Moore,  Third  Assist.  Secy,  of  State,  to  the  President,  June 
27,  1891,  interpreting  the  conditions  upon  which  the  nationals  of  foreign 
States  were  entitled  to  the  benefits  of  Section  13  of  the  Act  of  March  3,  1891, 
For.  Rel.  1892,  261,  Moore,  Dig.,  II,  45.  See,  also.  Bong.  v.  Campbell  Art 
Co.,  214  U.  S.  236,  to  the  effect  that  under  that  section  of  the  Act  of  1891,  no 
rights  were  conferred  on  the  nationals  of  countries  which  were  parties  to  a 
copyright  union  to  which  the  United  States  might  also  become  a  party,  inde- 
pendent of  the  President's  proclamation.  See,  especially,  the  language  of 
Mr.  Justice  McKenna,  in  the  opinion  of  the  Court,  id.,  248. 

^  See  Presidential  proclamations  contained  in  "The  Copyright  Law  of  the 
United  States  of  America",  Library  of  Congress,  Copyright  Office,  Copy- 
right Office  Bulletin,  No.  14,  1919,  pp.  39-40. 

371 


§  208]     GENERAL   RIGHTS   OF   PROPERTY   AND   CONTROL 

works  made  the  subject  of  copyright  by  the  laws  of  the  United 
States  first  produced  or  published  abroad  after  August  1,  1914, 
and  before  the  date  of  the  President's  proclamation  of  peace,  of 
which  the  authors  or  proprietors  are  citizens  or  subjects  of  any 
foreign  State  or  nation  granting  similar  protection  for  works  by 
citizens  of  the  United  States,  the  existence  of  which  shall  be  de- 
termined by  a  copyright  proclamation  issued  by  the  President 
of  the  United  States,  shall  be  entitled  to  the  protection  conferred 
by  the  copyright  laws  of  the  United  States  from  and  after  the  ac- 
complishment, before  the  expiration  of  fifteen  months  after  the 
date  of  the  President's  proclamation  of  peace,  of  the  conditions 
and  formalities  prescribed  with  respect  to  such  works  by  the 
copyright  laws  of  the  United  States."  ^ 

1  Chap.  11,  41  Stat.  368-369,  amending  §§8  and  21  of  the  Copyright  Act 
of  March  4,  1909. 

§  21  provided  that  in  the  case  of  a  book  first  published  abroad  in  the  English 
language  on  or  after  the  date  of  the  President's  proclamation  of  peace,  the 
deposit  in  the  copyright  office,  not  later  than  sixty  days  after  its  publication 
abroad,  of  one  complete  copy  of  the  foreign  edition,  with  a  request  for  the 
reservation  of  the  copyright  and  a  statement  of  the  name  and  nationality  of 
the  author  and  of  the  copyright  proprietor  and  of  the  date  of  publication  of 
the  book,  should  secure  to  the  author  or  proprietor  an  ad  interim  copyright, 
which  should  have  all  the  force  and  effect  given  to  copyright  by  the  Act,  and 
should  endure  until  the  expiration  of  four  months  after  such  deposit  in  the 
copyright  office.     41  Stat.  369. 

By  a  proclamation  of  April  10,  1920  (to  take  effect  as  from  Feb.  2,  1920), 
pursuant  to  the  existing  statutory  law,  there  was  granted  to  the  subjects  of 
Great  Britain  and  the  British  Dominions,  Colonies,  and  Possessions  (with 
the  exception  of  the  self-governing  Dominions  of  Canada,  Australia,  New 
Zealand,  South  Africa  and  Newfoundland),  the  protection  of  the  American 
copyright  law  of  March  4,  1909,  and  the  Acts  amendatory  thereof.  The  en- 
joyment of  the  rights  and  benefits  of  the  Copyright  Act  was  conditional  upon 
compliance  with  the  requirements  and  formalities  prescribed  by  the  laws  of  the 
United  States.  Protection  was  also  granted  to  contrivances,  including  records, 
perforated  rolls,  and  other  devices  by  means  of  which  a  musical  work  might  be 
mechanically  performed.  The  proclamation  served  to  put  into  effect  an 
arrangement  which  had  been  proposed  by  the  British  Government  in  August, 
1918.  An  order  in  council  of  Feb.  9,  1920,  in  conformity  with  the  British 
Copyright  Act  of  1911,  extended  copyright  protection  to  works  first  published 
in  the  United  States  between  Aug.  1,  1914,  and  the  termination  of  the  war, 
which  had  not  been  republished  prior  to  Feb.  2,  1920,  in  the  parts  of  the  British 
Dominions  to  which  the  order  applied.  The  enjoyment  of  rights  conferred 
by  the  British  Copyright  Act  of  1911,  was  conditional  upon  publication  of  the 
work  in  Great  Britain  not  later  than  six  months  after  the  termination  of  the 
war,  and  was  to  commence  from  and  after  such  publication.  The  order  in 
council  embraced  in  its  application  contrivances  by  means  of  which  musical 
works  might  be  mechanically  performed,  including  records,  perforated  rolls, 
etc.  41  Stat.  (Proclamations)  50.  Cf.  Dept.  of  State,  statement  for  the 
Press,  April  14,  1920,  No.  1. 

The  British  Government  in  interpreting  the  expression  "termination  of 
the  war"  as  used  in  the  order  in  council  of  Feb.  9,  1920,  advised  the  Depart- 
ment of  State  that  the  expression  as  so  used  was  "intended  to  mean  the  date 
of  the  general  termination  of  the  war  and  not  the  date  of  the  termination  of 
the  war  between  His  Majesty  and  any  particular  State",  and  added  that  the 
actuai  date  would  be  fixed  by  an  order  of  His  Majesty  in  council,  and  that  if 

372 


MONOPOLIES  [§  209 

(f) 
Concessions 

(i) 
§  209.    Monopolies. 

In  the  granting  of  concessions  a  State  enjoys  large  discretion. 
It  may  at  will  grant  a  monopoly,  such,  for  example,  as  an  exclu- 
sive privilege  to  lay  and  operate  a  cable,  and  that,  to  an  alien.^ 
In  such  case  no  ground  of  foreign  complaint  is  apparent  unless  the 
action  of  the  grantor  violates  the  provisions  of  a  treaty.^  When 
the  object  of  a  concession  is  to  facilitate  the  accomplishment  of 
an  end  which,  in  the  judgment  of  the  territorial  sovereign,  may  be 
appropriately  or  best  attained  through  the  instrumentality  of  a 
single  grantee,  the  creation  of  a  monopoly  in  favor  of  an  alien  who 
is  not  a  national  of  a  State  whose  treaty  with  the  grantor  pro- 
vides unconditionally  for  the  enjoyment  of  the  most-favored-nation 
privileges,  is  not  necessarily  conclusive  of  a  breach  of  the  agreement.^ 
In  such  case  the  real  source  of  grievance  is  the  decision  of  the  ter- 
ritorial sovereign  to  attain  its  end  by  means  of  a  single  agency  im- 
mune from  dangers  of  competition.  While  the  method  of  choosing 
or   favoring   a   special   concessionaire   might,    in    the   particular 

it  should  happen  that  such  date  should  be  in  advance  of  the  date  of  the  Presi- 
dent's proclamation  of  peace,  the  British  Government  would  be  prepared  to 
take  the  necessary  steps  to  vary  the  order  in  council  of  Feb.  9,  1920,  by  sub- 
stituting for  the  expression  "termination  of  the  war",  a  date  corresponding 
to  that  of  the  Presidential  proclamation.  Dept.  of  State,  statement  for  the 
Press,  July  8,  1920,  No.  1. 

On  December  9,  1920,  a  proclamation  of  the  President  granted  to  the  sub- 
jects of  Denmark  the  protection  of  the  American  copj-right  laws.  It  adverted 
to  satisfactory  official  assurance  given  by  the  Government  of  Denmark  that 
the  Royal  decrees  of  Feb.  22,  1913,  issued  by  virtue  of  the  authority  conferred 
by  the  Danish  Copyright  Law  of  April  1,  1912,  extending  to  American  authors 
the  rights  and  privileges  conferred  by  that  law  (including  reproduction  by 
mechanical  instruments  and  cinematographic  representation),  were  not  can- 
celed during  the  war,  and  that  if  protection  was  granted  in  the  United  States 
to  works  by  Danish  authors  which  had  been  published  during  the  war,  pro- 
tection in  Denmark  for  American  authors  would  take  effect  automatically. 

1  Opinion  of  Atty.-Gen.  Griggs,  June  15, 1899,  22  Ops.  Attys.-Gen.,  514,  516; 
also  Opinion  of  same,  23  Ops.  Attys.-Gen.,  425,  427. 

^  In  a  communication  from  Mr.  Foster,  Secy,  of  State,  to  Messrs.  McKes- 
son and  Robbins,  Nov.  12,  1892,  it  was  declared  that  while  the  grant  of  a 
monopoly  "is  inconsistent  with  American  ideas  and  probably  would  be  prej- 
udicial to  American  interests,  any  official  protest  against  it,  unless  based 
upon  treaty  obligations,  would  necessarily  have  the  appearance  of  attempting 
to  interfere  with  the  sovereign  right  of  a  country  to  regulate  its  own  export 
and  import  trade."     189  MS.  Dom.  Let.  151,  Moore,  Dig.,  II,  77. 

^  Compare  Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Hunter,  Charge  to  Brazil, 
Dec.  17,  1834,  MS.  Inst.  Brazil,  XV,  15,  Moore,  Dig.,  II,  76.  See,  alf-o, 
Case  of  Boston  Ice  Co.  in  Colombia,  For.  Rel.  1888,  I,  411,  420,  429;  Mr. 
Bayard,  Secy,  of  State,  to  Mr.  Hall,  Minister  to  Central  America,  March  27- 
1888,  For.  Rel.  1888,  I,  134,  136,  137,  Moore,  Dig.,  II,  76. 

373 


§  209]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

case,  possibly  justify  the  charge  of  an  unjust  discrimination,  it  is 
believed  that  the  determination  to  create  a  monopoly,  even  in 
favor  of  an  alien  entitled  to  no  special  privileges  by  virtue  of  any 
treaty  with  his  country,  would  hardly  suffice  to  do  so. 

Charges  of  unjust  discrimination  find  better  support  when 
concessions  are  granted  which  do  not  purport  to  be  monopolies. 
This  is  true,  for  example,  where  the  grant  of  special  privileges  or 
the  right  to  participate  in  them,  is  confined  to  the  nationals  of 
two  or  more  specially  favored  States.  Even  in  such  case,  how- 
ever, the  reasonableness  of  foreign  complaint  must  depend  upon 
the  terms  of  a  particular  convention  between  the  grantor  and  the 
aggrieved  State.  Thus,  the  basis  of  the  claim  of  the  United  States 
in  1909,  of  a  right  to  participate,  through  American  citizens,  in 
a  foreign  loan  to  China,  to  be  divided  among  financial  institutions 
representative  of  certain  powers,  was  the  political  and  commercial 
relationship  which  had  been  established  by  treaty  in  favor  of  the 
United  States  and  for  the  benefit  of  its  citizens.^ 

(ii) 
§  210.    Cancellation  of  Concessions. 

In  creating  a  concession  the  territorial  sovereign  may  prescribe 
the  conditions  upon  which  it  is  to  be  operated  or  enjoyed.  Those 
may,  for  example,  provide  that  the  failure  of  the  grantee  to  per- 
form certain  acts  shall  serve  either  automatically  to  put  an  end 
to  the  concession,  or  to  give  the  grantor  the  right  to  cancel  or  re- 
voke it  at  will.  In  exercising  the  right  of  cancellation  or  revoca- 
tion, the  grantor  is  obviously  obliged  to  conform  to  the  terms  of  the 
agreement.^  The  United  States  has  been  confronted  with  numer- 
ous cases  where  a  grantor  ignored  this  obligation  and  by  so  doing 
abused  its  power. 

^  Respecting  the  assistance  rendered  by  the  Department  of  State  through 
the  medium  of  the  American  Legation  of  Peking,  in  1909,  to  an  American 
group  of  capitaUsts  to  participate  in  the  Hukuang  railway  loan,  see  For.  Rel. 
1909,  144-215;  id.,  1910,  269-291;  Message  of  President  Taft,  Dec.  7,  1911, 
id.,  1911,  XVIL  Compare  Circular  telegram  of  Mr.  Adee,  Acting  Secy,  of 
State,  to  the  American  Embassies  at  Paris,  London,  Berlin,  St.  Petersburg 
and  Tokio,  and  to  the  American  Legation  at  Peking,  March  19,  1913,  For. 
Rel.  1913;  170. 

^  Relative  to  the  effect  of  a  provision  in  a  concession  to  an  alien  that  all 
questions  arising  therefrom,  and  not  amicably  settled  by  the  contracting 
•  parties,  shall  be  adjusted  by  the  courts  of  the  grantor's  State,  and  that  no  re- 
course shall  be  had  to  diplomatic  interposition,  see  Senate  Doc.  No.  413, 
60  Cong.,  1  Sess.,  79-85 ;  letter  of  John  W.  Foster  to  S.  M.  CuUom,  Chairman 
of  Senate  Committee  on  Foreign  Relations,  April  14,  1908,  concerning  Vene- 
zuelan claims,  9-17;  Moore,  Dig.,  VI,  293-309,  and  documents  there  cited; 
cf.  Claims,  infra,  §  304. 

374 


THE  LANDING  OF  SUBMARINE  CABLES  [§  21 1 

Whether  a  territorial  sovereign  has  cause  for  canceling  or 
revoking  a  concession,  and  whether  the  means  employed  by  it  in 
pursuing  such  a  course  are  legitimate,  raise  questions  which,  in 
the  event  of  disagreement  between  the  grantor  and  the  grantee, 
should  normally  be  adjusted  by  judicial  process.^ 

(g) 
§  211.   The  Landing  and  Protection  of  Submarine  Cables. 

A  State  may  lawfully  exercise  complete  control  of  the  landing 
of  submarine  cables  on  its  shores.  Without  its  consent  the  effect- 
ing of  such  a  landing  amounts  to  illegal  conduct.^  Consent  need 
not  be  given  save  on  terms  which  the  territorial  sovereign  itself 
regards  as  equitable.^  If  the  landing  of  a  cable  is  effected 
without  its  permission  or  otherwise  against  its  will,  that  sovereign 
may  fairl}'  prohibit  the  operation  of  the  line  until  the  conditions 
which  it  deems  necessary  to  impose  are  accepted  and  observed.'* 

It  is  not  unreasonable  for  a  State  to  withhold  consent  to  the 
landing  of  a  cable  on  its  shores  until  assured  that  its  use,  whether 
directly  or  indirectly  as  a  part  of  a  foreign  system,  will  not  serve 
to  establish  a  domestic  or  foreign  monopoly  in  the  transmission 
of  messages  to  foreign  territory.^     With  the  increasing  use  of 

1  Cf.  For.  Rel.  1905,  124-135,  relative  to  cancellation  of  the  American  China 
Development  Company's  Canton-Hankau  Railway  Concession. 

^  See  opinion  of  Mr.  Richards,  Acting  Attv.-Gen.,  to  Mr.  Sherman,  Secy, 
of  State,  Jan.  18,  1898,  22  Ops.  Attys.-Gen.,  l3.  For.  Rel.  1897,  166,  Moore, 
Dig.,  II,  452.  This  opinion  was  affirmed  by  Mr.  Griggs,  Atty.-Gen.,  March 
25,  1899,  22  Ops.  Attys.-Gen.,  408.  In  support  of  the  proposition  stated  in 
the  text,  Mr.  Richards  quotes  President  Grant,  Annual  Message,  Dec,  1875, 
Sen.  Doc.  No.  122,  49  Cong.,  2  Sess.,  70;  Mr.  Fish,  Secy,  of  State,  to  Mr. 
Eckert,  Jan.  2,  1877,  id.,  11,  12;  Lacombe,  J.,  in  United  States  v.  La  Com- 
pagnie  Fran^aise  des  Cables  Telegraphiques,  77  Fed.  495,  496;  Marshall, 
C.  J.,  in  The  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  136.  See,  also, 
Naval  War  College,  Int.  Law  Situations,  1907,  139-143. 

^  Declared  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Scrymser,  March  7,  1886 : 
"  The  President  has  the  power  to  grant  or  withhold,  in  his  discretion,  permis- 
sion to  land  a  foreign  cable  on  the  shores  of  the  United  States,  and  to  impose 
whatever  conditions  thereon  he  may  deem  proper  in  the  public  interest,  sub- 
ject to  whatever  action  Congress  may  take  thereon."  159  MS.  Dom.  Let.  258, 
Moore,  Dig.,  II,  463,  note.  As  to  conditions  regarded  by  the  United  States 
as  essential,  see  correspondence  in  1899,  relative  to  the  landing  of  a  submarine 
cable  by  the  German- Atlantic  Telegraphic  Company,  For.  Rel.  1899,  310- 
315,  Moore,  Dig.,  II,  464-466. 

*  Opinion  of  Mr.  Richards,  Acting  Atty.-Gen.,  22  Ops.  Attys.-Gen.,  13,  27. 
The  opinion  discussed  fully  the  question  as  to  the  rights  of  the  Executive  in 
the  ab.sence  of  congressional  legislation,  to  grant  permission  for  the  landing 
of  a  cable,  and  adverted  to  the  conflicting  views  of  certain  Secretaries  of  State. 

^  In  August,  1920,  the  United  States  prevented  by  means  of  a  naval  force 
the  British  cable  ship  Colonia  from  laying  a  cable  within  the  territorial  waters 
of  the  United  States  near  Miami,  Florida,  and  which  was  to  be  laid  from  those 
waters  to  Barbados,  where  it  was  to  connect  with  a  British  cable  line  to  Brazil. 

375 


§  211]     GENERAL  RIGHTS  OF  PROPERTY  AND  CONTROL 

automatic  relays,  there  is  believed  to  be  need  of  a  general  agree- 
ment to  facilitate  the  transmission,  in  time  of  peace,  of  messages 
over  connecting  cables  by  the  elimination  of  a  censorship  in  foreign 
territory  constituting  merely  an  intervening  link  in  a  chain  of 
communications  rather  than  the  destination  to  which  intelligence 
is  addresspfj. 

The  protectio'^  of  ^n^marine  cables  from  injury  attributable 
to  willful  misconduct  or  culpable  neglect  has  necessarily  become  a 
matter  of  international  cooperation.^  Tiie  United  States  is  a  party 
to  the  International  Convention  for  the  Protection  of  Submarine 
Cables  concluded  March  14,  1884;-^ 

The  President  refused  to  consent  to  the  cable  connection  between  the  United 
States  and  Brazil  (via  Barbados)  except  upon  the  renunciation  by  the  American 
owner  of  the  Miami-Barbados  cable  of  its  rights  to  utilize  what  was  deemed  to 
be  a  monopolistic  concession  in  Brazil  acquired  by  the  British  owner  of  the 
cable  between  Barbados  and  Brazil,  and  with  which  the  American  owner  had 
a  favorable  contract.  See  allegations  contained  in  Bill  of  Complaint  and 
Order  to  Show  Cause  in  case  of  United  States  v.  Western  Union  Telegraph 
Company,  in  the  District  Court  of  New  York,  for  the  Southern  District  of 
New  York,  In  Equity,  No.  E.  20-269,  January,  1921 ,  also  memorandum  in 
behalf  of  the  United  States,  in  support  of  application  for  a  prehminary  in- 
junction. It  is  not  understood  that  in  this  case  the  rights  of  the  United  States 
under  international  law  to  control  cable  connections  with  foreign  territory 
were  necessarily  involved,  but  rather  the  extent  of  the  right  of  the  President 
as  such  to  exact  conditions  and  exercise  control  over  cable  connections  in  behalf 
of  the  nation,  and  incidently  to  invoke  the  aid  of  a  court  of  equity  as  against 
the  American  corporate  owner  of  a  cable  with  which  a  connection  was  sought 
to  be  thwarted.  On  March  11,  1921,  the  Circuit  Court  of  Appeals  affirmed 
the  decision  of  the  District  Court  refusing  the  Government  a  preliminary 
injunction. 

^  See,  generally,  concerning  the  protection  of  submarine  cables :  Franz 
Scholz,  Krieg  und  Seekabel,  Berlin,  1904 ;  C.  Phillipson,  Two  Studies  in  Inter- 
national Law,  1908;  Victor  Perdrix,  Les  cables  sous-marins  et  leur  protection 
Internationale,  Paris,  1902;  Pierre  Jouhannaud,  Les  cables  sous-marins,  leur 
protection  en  temps  de  paix  et  en  temps  de  guerre,  Paris,  1904;  Wilson,  Sub- 
marine Telegraphic  Cables  in  their  International  Relations,  Naval  War  Col- 
lege, August,  1901;  BibUographv  in  Clunet,  Tables  Gen.,  I,  457-458,  879- 
880;  Bonfils-FauchiUe,  7  ed.,  §  583;  Rivier,  I,  386-387;  L.  Renault,  "De  la 
protection  inter nationale  des  cables  telegraphiques  sous-marins",  Rev.  Droit  Int., 
1  ser.,  XII,  251;  "La  protection  des  telegraphes  sous-marins  et  Conference  de 
Paris,  Octobre-Novembre,  1882",  id.,  XV,  17;    also  id.,  619. 

See,  also,  The  Cutting  of  Submarine  Telegraphic  Cables,  infra,  §  723. 

2  Malloy's  Treaties,  II,  1949.  See  provisions  of  the  Act  of  Feb.  29,  1888, 
25  Stat.  41,  for  the  enforcement  of  the  convention,  U.  S.  Comp.  Stat.  1918, 
§§  10087-10099.  The  United  States  is  also  a  party  to  a  Declaration  of 
bee.  1,  1886,  respecting  the  interpretation  of  certain  Articles  of  the  Con- 
vention of  1884;  and  to  a  final  protocol  of  July  7,  1887,  fixing  May  1,  1888, 
as  the  date  of  the  taking  effect  of  the  Convention.    Id.,  II,  1956,  and  II,  1958. 

Concerning  the  International  Conference  of  Paris,  1891,  see  Documents 
de  la  Conference  Telegraphique  I nfernationale  de  Paris;  published  by  the 
International  Bureau  of  Telegraphic  Administration,  Berne,  1891. 


376 


DISPLAY  OF  FOREIGN  FLAGS  [§  212 

(h) 
Police  and  Other  Regxilations 

(i) 

§  212.    Display  of  Foreign  Flags. 

That  a  State  may  not  unlawfully  forbid  the  display  of  foreign 
flags  within  its  territory,  appears  formerly  to  have  been  acknowl- 
edged by  the  Department  of  State.  Thus  the  law  of  Mexico 
of  1859,  forbidding  a  foreign  consular  officer  to  display  his  national 
flag  except  when  the  town  of  his  residence  was  besieged,  or  mutiny 
or  sedition  arose  therein,  was  apparently  at  one  time  not  regarded 
by  the  United  States  as  an  arbitrary  exercise  of  power.^  ]\Iore- 
over,  the  possession  of  such  a  right  of  a  territorial  sovereign  found 
some  recognition  in  the  consular  regulations  of  the  United  States, 
and  in  its  instructions  to  diplomatic  officers.^ 

In  1912,  the  Department  of  State  declared  that  the  flag  of 
a  consul's  nation  may  be  displayed  by  him  at  all  times  and  not 
merely  on  certain  holidays;  and  this  was  said  to  be  the  course 
followed  by  American  consuls  throughout  the  world,  and  in  accord- 
ance with  the  practice  of  other  nations.^ 

Frequently  a  state  makes  no  attempt  to  prevent,  or  openly 
consents  to  the  official  or  unofficial  display  of  foreign  flags.  In 
such  case  any  violent  or  forcible  removal  of  them  without  previous 

1  Mr.  Day,  Asst.  Secy,  of  State,  to  Mr.  Barron,  Oct.  20,  1897,  221  MS. 
Dom.  Let.  560,  Moore,  Dig.,  II,  134-135.  Compare,  Art.  XIV  of  Regula- 
tions concerning  immunities  of  consuls,  adopted  by  the  Institute  of  Inter- 
national Law  at  its  session  at  Venice,  Sept.  26,  1896,  Annuaire,  XV,  304, 
307;  translation  in  Stowell,  Consular  Cases  and  Opinions,  1,  3,  J.  B.  Scott, 
Resolutions,  126. 

-  Sees.  70  and  73  of  Consular  Regulations  of  the  United  States,  1896, 
Moore,  Dig.,  II,  134 ;  Instructions  to  Diplomatic  Officers  of  the  United  States, 
1897,  sec.  64,  Moore,  Dig.,  II,  134;  Mr.  Hay,  Secy,  of  State,  to  Mr.  Powell, 
Minister  to  Haiti,  July  20,  1899,  pubhshed  as  enclosure  in  For.  Rel.  1905, 
876. 

'  Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassador  at  Washington, 
June  21,  1912,  For.  Rel.  1912,  903-905,  where  it  was  said  that  since  the  rea- 
son for  displaying  the  flag  above  the  consular  premises  "as  recognized  in  inter- 
national law"  was,  as  expressed  in  the  consular  treaties  of  the  United  States 
with  other  countries,  "in  order  that  the  consular  office  or  dwelling  may  be 
easily  and  generally  known  for  the  convenience  of  those  who  may  have  resort 
to  them",  a  consul  would  seem  to  have  the  right  to  display  his  country's 
flag  at  all  times.  Hope  was  expressed  that  the  Mexican  Government  would 
see  fit  "fully  to  recognize  the  rules  and  principles  of  international  law  gov- 
erning this  matter",  and  to  refrain  from  insisting  upon  a  strict  compliance 
by  American  consuls  with  the  provisions  of  the  Mexican  law  of  1859,  "thus 
permitting  them  to  display  the  American  flag  in  such  manner  and  at  such 
times  as  their  discretion  dictates,  unless  in  particular  cases  some  good  reason 
exists  and  can  be  shown  why  this  should  not  be  done." 

377 


§  212]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

notice  is  regarded  as  "a  readiness  to  offend  the  just  sensibilities 
of  the  country"  to  which  the  emblem  belongs.^ 

In  1899,  Secretary  Hay  declared  that  in  countries  liable  to 
domestic  disturbances  and  in  which  they  were  recurrent,  it  had 
become  the  usage  of  resident  aliens  to  display  their  national  flag 
in  order  to  indicate  the  foreign  ownership  of  property,  and  thereby 
to  insure  its  protection.^  The  Department  of  State  appeared  to  be 
disposed  to  favor  the  continuance  of  this  custom, 

A  State  may  be  called  upon  to  prevent  the  display  upon  its 
merchant  vessels  of  the  national  emblem  of  a  foreign  power  .^ 
The  United  States,  although  appearing  to  doubt  whether  a  legal 
duty  attributable  to  international  law  is  imposed  ui)on  a  State  to 
prevent  the  use  within  its  territory  of  a  foreign  national  emblem 
for  purposes  of  local  advertising,^  is  disposed  to  urge  the  coopera- 
tion of  a  foreign  territorial  sovereign  to  prevent  the  abuse  within 
its  domain  of  the  American  flag  in  such  a  way.^ 

An  obligation  clearly  rests  upon  a  State  to  make  reasonable 
effort  to  prevent  intentional  insult  to  a  foreign  flag  when  displayed 
within  its  territory  and  with  its  consent.  When  an  over-zealous 
public  official,  military  or  civil,  is  guilty  of  such  an  act,  his  conduct 
should  be  disavowed,  and  the  offender  subjected  to  punishment.* 

1  Mr.  Seward,  Secy,  of  State,  to  Mr.  Molina,  Sept.  28,  1863,  MS.  Notes 
to  Central  America,  I,  240,  Moore,  Dig.,  II,  136. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Merry,  Minister  to  Nicaragua,  May  8, 
1899,  For.  Rel.  1899,  582,  Moore,  Dig.,  II,  136.  See,  also,  correspondence 
relating  to  display  of  foreign  flags  over  private  establishments  in  Haiti  in  1903, 
For.  Rel.  1903,  596-597,  Moore,  Dig.,  II,  138. 

^  Mr.  Sherman,  Secy,  of  State,  in  a  communication  to  Mr.  Storer,  Minister 
to  Belgium,  Feb.  7,  1898,  said  :  "A  line  of  steamers  plying  between  England 
and  the  United  States  under  the  British  flag  has  for  some  years  past  used  the 
United  States  union  jack  as  its  house  flag.  Upon  inquiry  being  made  by  the 
Ambassador  in  London  the  British  Board  of  Trade  intervened,  in  virtue  of  its 
authority  in  matters  of  shipping  and  navigation,  and  I  am  just  informed  that 
the  line  in  question  has  been  constrained  to  adopt  another  distinctive  house 
flag."  For.  Rel.  1898,  159-160,  Moore,  Dig.,  II,  137,  note.  Cf.  For.  Rel. 
1904,  101-103,  regarding  complaint  by  the  American  Minister  at  Rio  de  Janeiro 
that  a  Brazilian  line  of  sailing  vessels  was  using  a  house  flag  resembling  one 
of  the  flags  of  the  United  States,  also  Moore,  Dig.,  II,  138. 

*  See  incident  relating  to  use  of  the  American  flag  for  advertising  purposes 
in  Belgium  in  1897,  For.  Rel.  1898,  157-162,  Moore,  Dig.,  II,  137. 

*  Mr.  Wilson,  Acting  Secy,  of  State,  to  Mr.  Moses,  American  Minister  to 
Greece,  June  18,  1909  (adverting  to  a  case  in  Brazil  in  1864,  mentioned  in 
Moore,  Dig.,  II,  135),  For.  Rel.  1909,  337,  where  the  attempt  was  success- 
fully made  to  enlist  the  cooperation  of  the  Greek  Government  in  preventing 
the  use  by  Greeks  who  had  returned  from  a  sojourn  in  America,  of  the  Ameri- 
can flag,  in  advertisements  of  saloons  and  cigar  stores. 

See,  also.  For.  Rel.  1909,  393-394,  with  reference  to  the  use  of  the  Ameri- 
can flag  for  advertising  purposes  in  certain  cities  of  Italy,  and  the  coopera- 
tion of  the  Government  of  that  State,  notwithstanding  the  absence  of  an 
appropriate  local  law,  in  causing  a  discontinuance  of  the  practice. 

« Mr.  Foster,  Secy,  of  State,  to  Mr.  Patenotre,  French  Minister,  July  13, 

378 


QUARANTINE    REGULATIONS  [§  2)  3 

There  is  believed  to  be  no  disposition  on  the  part  of  enlightened 
States  to  pursue  under  such  circumstances  a  different  course.^ 

(ii) 
§  213.    Quarantine  Regulations. 

Save  for  the  general  inliibition  that  no  State  shall  exercise  its 
power  arbitrarily  with  respect  to  the  outside  world,  the  territorial 
sovereign  is  subject  to  slight  restraint  in  establishing  quarantine 
regulations  for  the  protection  of  the  health  of  the  inhabitants 
of  its  domain.  Thus,  for  example,  it  may  reasonably  demand  a 
rigid  inspection  of  the  passengers,  crews,  and  cargoes  of  all  vessels 
entering  its  ports;  and  it  may  close  its  ports  against  vessels 
proceeding  from  places  believed  or  kno^\Ti  to  be  infected.^  Again, 
a  quarantine  may  be  established  against  animals  sought  to  be 
imported  from  countries  within  which  dangerous  diseases  are 
prevalent ;  ^  and  also  against  certain  food  products  such  as  fruit, 
coming  from  places  where  similar  conditions  exist."* 

1892,  For.  Rel.  1892,  174,  Moore,  Dig.,  II,  138;  Mr.  Adee,  Acting  Secy, 
of  State,  to  Viscount  de  Santo-Thvrso,  Portuguese  Minister,  July  28,  1897, 
For.  Rel.  1897,  433,  Moore,  Dig./ll,  140;  Mr.  Hay,  Secy,  of  State,  to  Dr. 
von  Holleben,  German  Ambassador,  Jan.  25,  1900,  MS.  Notes  to  German 
Legation,  XII,  398,  Moore,  Dig.,  II,  141.  See  correspondence  with  Mexico, 
in  November,  1910,  For.  Rel.  1911,  355-356. 

Concerning  the  action  of  Colonial  authorities  at  Bermuda  in  punishing 
British  sailors  responsible  for  hauling  dowTi  the  American  flag  flying  from  a 
hotel  at  Hamilton,  July  4,  1920,  and  the  official  regret  expressed  by  British 
naval  authorities,  see  Dept.  of  State  statement  for  the  Press,  July  23,  1920, 
No.  1. 

^  It  may  be  noted  that  by  the  provisions  of  the  so-called  Espionage  Act  of 
June  15,  1917,  40  Stat.  219,  amended  May  16,  1918,  U.  S.  Comp.  Stat.  1918, 
§  10212c,  there  were  prohibited  "when  the  United  States  is  at  war",  certain 
acts  profaning  or  contemptuous  of  the  A.merican  flag ;  and  also  the  willful 
display  of  the  flag  of  any  foreign  enemy. 

2  Report  of  Colombian  Minister  of  Foreign  Affairs,  1894,  For.  Rel.  1894, 
193,  197. 

As  to  the  force  which  a  State  may  not  unreasonably  employ  in  order  to 
compel  obedience  to  its  port  regulations,  see  treatment  accorded  the  French 
Steamer  Ln  France  by  Brazilian  authorities  in  1885,  Mr.  Trail,  Charge  at 
Rio  de  Janeiro,  to  Mr.  Bayard,  Secy,  of  State,  Jan.  21,  1887,  For.  Rel.  1887, 
54,  55,  Moore,  Dig.,  II,  144.  Compare,  award  in  favor  of  Italy  in  1893  against 
Portugal  in  the  Case  of  Lavarello,  for  arbitrary  operation  of  quarantine  laws 
in  1884,  Moore,  Arbitrations,  V,  5021-5034. 

See  provisions  of  the  existing  statutory  law  of  the  United  States  as  ex- 
pressed in  U.  S.  Comp.  Stat.  1918,  §§  9155-9165. 

'  Mr.  Adee,  Acting  Secv.  of  State,  to  Dr.  Vogel,  Swiss  Legation,  Aug.  13, 
1896,  MS.  Notes  to  Switzerland,  I.  412.  Moore.  Dig.,  II,  152. 

See  Circular,  by  Mr.  Knox,  Secy,  of  State,  to  American  diplomatic  officers, 
Feb.  7,  1913,  concerning  regulations  in  compliance  with  the  so-called  Plant 
Quarantine  Act  of  Aug.  12,  1912,  37  Stat.  315,  in  respect  to  foreign  inspection 
and  certification.  For.  Rel.  1913,  2. 

*  See,  for  example,  order  issued  by  Germany  in  1898,  prohibiting  the  im- 
portation of  American  fruit  in  order  to  prevent  the  introduction  of  the  San 
Jos6  scale,  For.  Rel.  1898,  307-346,  Moore,  Dig.,  II,  153. 

379 


§  213]     GENERAL   RIGHTS   OF  PROPERTY  AND   CONTROL 

Foreign  States  are  inclined  to  make  complaint  when  quarantine 
regulations  are  directed  against  such  parts  of  their  territories  as 
may  at  all  times  have  been  free  from  infection,  or  in  case  of  the 
continuance  of  such  regulations  as  against  ports  from  which  the 
presence  of  a  contagious  disease  has  been  completely  eradicated.' 

In  the  absence  of  Federal  legislation,  the  laws  of  the  States 
of  the  United  States,  with  respect  to  quarantine,  are  regarded  as 
normally  valid .^  In  the  enactment  of  such  laws  it  is  regarded  as  a 
constitutional  requirement  that  there  be  no  discrimination  against 
an  entire  class  of  persons,  such  as  those  of  Asiatic  races,  whether 
nationals  or  aliens.'^ 

(iii) 
§  214.   Pilotage. 

A  State  is  doubtless  free  to  impose  compulsory  pilotage  on 
vessels  both  foreign  and  domestic  which  enter  or  leave  its  ports."* 
Opportunity  for  discrimination  in  the  amount  of  charges  exacted 
of  foreign  ships  or  of  those  arriving  from  particular  foreign  States, 
is  frequently  removed  by  conventional  arrangement.^ 

(iv) 

Religious  Freedom 
§  215.   In  General. 

A  State  may  doubtless  exercise  a  broad  control  over  the  religious 
training  and  worship  of    the   inhabitants  within  its  territory.^ 

1  Mr.  Madison,  Secy,  of  State,  to  American  Ministers  at  Paris,  London, 
and  Madrid,  May  13,  1805,  MS.  Inst,  to  American  Ministers,  VI,  294,  Moore, 
Dig.,  II,  142 ;  Mr.  Foster,  Secy,  of  State,  to  Mr.  de  Lome,  Spanish  Minister, 
Oct.  1,  1892,  MS.  Notes  to  Spain,  X,  669,  Moore,  Dig.,  II,  144;  Mr.  Gres- 
ham.  Secy,  of  State,  to  Mr.  Caruth,  Minister  to  Portugal,  Sept.  19,  1893, 
MS.  Inst.  Portugal,  XVI,  36,  Moore,  Dig.,  II,  148.  Concerning  the  ob- 
jection of  the  Department  of  State  to  the  absolute  exclusion  of  the  mails  as  a 
sanitary  measure  in  1888,  see  Mr.  Bayard,  Secv-  of  State,  to  Mr.  Walker, 
Charge  at  Bogota,  April  17,  1888,  For.  Rel.  1888,  I,  422,  Moore,  Dig.,  II, 
145,  and  documents  cited  id.,  146. 

2  Louisiana  v.  Texas,  176  U.  S.  1,  21,  citing  Morgan  Steamship  Company  v. 
Louisiana  Board  of  Health,  118  U.  S.  455. 

3  Wong  Wai  f.  Williamson,  103  Fed.  1,9.  See  correspondence  with  Japan 
in  1900,  concerning  alleged  discrimination  against  Japanese  subjects  in  the 
matter  of  quarantine  against  the  bubonic  plague  established  in  San  Francisco, 
For.  Rel.  1900,  737-757,  Moore,  Dig.,  II,  156-158.  Cf.,  also,  Mr.  Hay, 
Secy,  of  State,  to  Mr.  Takahira,  Japanese  Legation,  Nov.  26,  1901,  For.  Rel. 
1901,  377,  Moore,  Dig.,  II,  158. 

*  Homer  Ramsdell  Co.  v.  La  Compagnie  Generale  Trans-Atlantique, 
182  U.  S.  406;  also  The  Delaware,  161  U.  S.  4.59.  "In  the  waters  of  the 
United  States  the  regulation  of  pilotage  has  been  left  to  the  legislatures  of 
the  several  States."     Moore,  Dig.,  II,  160. 

^  Art.  VII  of  treaty  between  the  United  States  and  Spain  of  July  3,  1902, 
Malloy's  Treaties,  II.  1703 ;  Art.  XI  of  treaty  between  the  United  States 
and  Japan,  of  Feb.  21,  1911,  Charles'  Treaties,  80. 

6  Mr.  Buchanan,  Secy,  of  State,  to  the  Rev.  Mr.  Baird,  Oct.  22,  1845,  35 

380 


IN  GENERAL  [§  215 

States  having  an  established  religion  or  church,  at  the  present 
time  generally  accord  to  resident  aliens  who  may  dissent  from  its 
doctrines,  a  large  degree  of  religious  freedom.  Their  privileges 
are  oftentimes  expressed  in  treaties,  if  not  in  local  laws.^  So  wide- 
spread has  become  the  habit  of  tolerance  that  any  attempt  to 
abridge  completely  the  freedom  of  worship  of  a  resident  alien 
would  now  be  regarded  as  contrary  to  the  practice  of  enlightened 
States.-  The  possession  of  an  established  church  may  incline  the 
territorial  sovereign  to  forbid  the  general  propagation  of  doctrines 
at  variance  with  those  of  its  own,  as  well  as  attempts  to  proselyte.^ 
The  same  circumstance  may  cause  it  to  restrict  the  adherents  of 
other  persuasions  with  respect  to  the  location  and  forms  of  their 
places  of  worship,  and  also  with  regard  to  the  scope  of  the  func- 
tions of  their  clergy  or  representatives."* 

MS.  Dom.  Let.  299,  Moore,  Dig.,  H,  171  ;  Mr.  Fish,  Secy,  of  State,  to  Mr. 
Delaplaine,  Charge  at  Vienna,  June  2,  1875.  MS.  Inst.  Austria,  II,  352, 
Moore,  Dig.,  II,  172;  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Kasson,  Minister 
to  Austria-Hungary,  May  19,  1879,  MS.  Inst.  Austria-Hungary,  III,  13, 
Moore,  Dig.,  II,  174;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Seward,  Minister  to 
China,  May  2,  1876,  MS.  Inst.  China,  II,  385,  Moore,  Dig.,  II,  175;  Count 
D.  Tolstoi,  Russian  Minister  of  the  Interior,  to  Mr.  Hunt,  March  3,  1883, 
37  MS.  Desp.  Russia,  Moore,  Dig.,  II,  177  ;  Mr.  Blaine,  Secy,  o!  State,  to  Mr. 
Hicks,  Minister  to  Peru,  Dec.  5,  1890,  MS.  Inst.  Peru,  XVII,  440,  Moore, 
Dig.,  II,  178. 

1  Art.  II  of  Spanish  Constitution,  given  in  despatch  of  Mr.  Collier,  American 
Minister,  to  Mr.  Root,  Secy,  of  State,  Feb.  17,  1906,  For.  Rel.  1906,  II,  1351 ; 
Law  of  Boliyia  of  Aug.  27,'l906,  For.  Rel.  1906,  I,  106. 

See,  also.  Art.  IV  of  treaty  between  the  United  States  and  Spain  of  July 
3,  1902,  Malloy's  Treaties,  II,  1702 ;  Art.  XIV  of  treaty  between  the  I'nited 
States  and  Colombia  of  Dec.  12,  1846,  id.,  I,  306 ;  Art.  XIV  of  treaty  between 
the  United  States  and  China  of  Oct.  8,  1903,  id.,  I,  268. 

2  Mr.  Buchanan,  Secy,  of  State,  to  the  Rev.  Mr.  Baird,  Oct.  22,  1845,  35 
MS.  Dom.  Let.  299,  Moore,  Dig.,  II,  171  ;  Count  D.  Tolstoi,  Russian  Minister 
of  the  Interior,  to  Mr.  Hunt,  Mar.  3,  1883.  37  MS.  Desp.  Russia,  Moore,  Dig., 
II,  177 ;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Hicks,  Minister  to  Peru,  Dec.  5, 
1890,  MS.  Inst.  Peru,  XVII,  440,  Moore,  Dig.,  II,  178;  Note  of  Russian 
Foreign  Office  to  the  American  Ambassador,  Aug.  9  (21),  1895,  For.  Rel. 
1895,  II,  1078,  Moore,  Dig.,  IV,  111  ;  correspondence  between  the  United 
States  and  Germany  in  1898  regarding  certain  Mormon  Missionaries,  For. 
Rel.  1898,  347-354,  Moore,  Dig.,  IV,  134;  Case  of  Lewis  T.  Cannon  and 
Jacob  Miiller,  expelled  from  Prussia  in  1900,  referred  to  in  Note  of  Mr.  White, 
Ambassador  to  Germany,  to  Mr.  Hay,  Secy,  of  State,  Feb.  14,  1901,  For.  Rel. 
1901,  165,  Moore,  Dig.,  IV,  135. 

3  Mr.  Fish,  Secy,  of  State,  to  Mr.  Delaplaine,  Charg6  at  Vienna,  June  2, 
1875,  MS.  Inst.  Austria,  II,  352,  Moore.  Dig.,  II,  172 ;  Mr.  Frelinghuysen, 
Secy,  of  State,  to  Mr.  Smith,  Jan.  27.  1885,  154  MS.  Dom.  Let.  74,  Moore, 
Dig.,  VI,  340;  correspondence  between  the  United  States  and  Germany  in 
1898,  For.  Rel.  1898,  347-354,  Moore,  Dig.,  IV,  135. 

Concerning  the  position  of  the  United  States  in  objecting  to  discrimination 
against  missionaries  of  the  Mormon  Society  since  its  abandonment  of  polyg- 
amy, see  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Eustis,  Ambassador  to 
France,  July  29.  1895,  MS.  Inst."  France,  XXIII.  139,  Moore,  Dig.,  11,  177; 
Mr.  Uhl,  Asst.  Secv.  of  State,  to  Mr.  Doty,  U.  S.  Consul  at  Tahiti,  June  25, 
1895,  For.  Rel.  18fli7,  124,  Moore,  Dig.,  IV,  133. 

*  See  despatch  of  Mr.  Collier,  Minister  to  Spain,  to  Mr.  Root,  Secy,  of 

381 


§  215]     GENERAL   RIGHTS   OF   PROPERTY   AND    CONTROL 

The  United  States  always  demands  for  its  own  nationals  abroad 
the  enjoyment  of  as  large  privileges  of  religious  freedom  as  are 
accorded  the  nationals  of  other  States.^  In  all  matters  relating 
thereto  it  uniformly  enjoins  upon  its  diplomatic  officers  and  upon 
its  citizens,  the  duty  to  exercise  a  careful  regard  for  the  sensibilities 
of  foreign  native  peoples.-  However  deeply  interested  in  the 
cause  of  religious  liberty,  and  however  disposed  to  express  friendly 
suggestions  in  that  regard  to  other  powers,^  the  United  States 
does  not  undertake  to  plead  the  cause  of  aliens  within  foreign 
lands,"*  save  in  cases  where  their  religious  persecution  is  con- 
ceived to  be  directly  injurious  to  the  rights  of  the  nation  or  of  its 
citizens.^ 

It  has  been  observed  that  by  the  terms  of  the  treaty  concluded 
by  the  Principal  Associated  and  Allied  Powers  with  Poland  in 
June,  1919,  arrangement  was  made  for  the  protection  of  religious 
as  well  as  of  racial  and  linguistic  minorities  in  the  latter  state.® 

§  216.   American  Missionaries  in  Eastern  Countries. 

In  the  Turkish  Empire,  as  a  result  of  the  first  Capitulations, 
there  occurred  what  Mr.  Engelhardt  described  as  "an  abdication 
...  of   absolute   autonomy  in  religious   matters."  ^     Nor  was 

State,  of  Feb.  17,  1906,  concerning  the  status  of  non-Catholic  religious  de- 
nominations in  Spain,  For.  Rel.  1906,  IL  1351 ;  see,  also,  Mr.  Day,  Secy. 
of  State,  to  the  Rev.  Mr.  Strong,  June  3,  1898,  229  MS.  Dom.  Let.  113,  Moore, 
Dig.,  II,  178. 

1  Mr.  Root,  Secv.  of  State,  to  Mr.  Leishman,  Minister  to  Turkey,  Dec. 
14,  1905,'For.  Rel.'l906,  II,  1377. 

^  Mr.  Hay,  Secy,  of  State,  to  Mr.  Bridgman,  Minister  to  Bolivia,  Sept.  I, 
1899,  For.  Rel.  1899,  112,  Moore,  Dig.,  II,  179;  Mr.  Fish,  Secy,  of  State,  to 
Mr.  Adee,  Charge  at  Madrid,  Dec.  8.  1876,  MS.  Inst.  Spain,  XVIII,  52,  Moore, 
Dig.,  II,  175 ;  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Wallace,  ^linister 
to  Turkey,  Jan.  9,  1884,  MS.  Inst.  Turkey,  IV,  77,  Moore,  Dig.,  VI,  336; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Jackson,  July  17,  1885,  MS.  Inst.  Mexico, 
XXI,  329,  Moore,  Dig.,  VI,  337. 

3  Mr.  Seward,  Secy,  of  State,  to  the  Rt.  Rev.  Horatio  Potter,  Nov.  23, 
1866,  74  MS.  Dom.  Let.  417,  Moore,  Dig.,  II,  172 ;  Mr.  Hav,  Secy,  of  State, 
to  Mr.  Bridgman,  Minister  to  Bolivia,  Sept.  1,  1899,  For.  Rel.  1899,  112, 
Moore,  Dig.,  II,  179. 

*  Mr.  Cass,  Secy,  of  State,  to  Mr.  Williams,  Oct.  22,  1860,  MS.  Inst.  Tur- 
key, II,  27,  Moore,  Dig.,  VI,  333 ;  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr. 
Gifford,  Dec.  19,  1884,  153  MS.  Dom.  Let.  470,  Moore,  Dig.,  VI,  339;  Mr. 
Day,  Secy,  of  State,  to  the  Rev.  Mr.  Strong,  June  3,  1898,  229  MS.  Dom.  Let. 
113,  Moore,  Dig.,  II,  178. 

*  Supra,  §  55.      Compare,  Mr.  Hay,  Secy,  of  State,  to  Mr.  Wilson,   Min- 
ister to  Roumania,  July  17,  1902,  For.  Rel.  1902,  910,  Moore,  Dig.,  VI.  362 
Mr.  Hay,  Secy,  of  State,  to  American  Representatives  at  London,  Paris, 
Berlin,  St.  Petersburg,  Vienna,  Rome,  and  Constantinople,  Aug.  11,  1902, 
For.  Rel.  1902,  42,  Moore,  Dig.,  VI,  365. 

*  Treatment  qf  Nationals,  supra,  §  55.    See  British  Treaty  Series  No.  8 
1919  [Cmd.  223]. 

^  Translated  from  an  article  entitled  "Le  Droit  d' Intervention  et  la  Turquie  " , 

382 


AMERICAN  MISSIONARIES  IN  EASTERN  COUNTRIES     [§  216 

the  Porte  ever  able  to  regain  complete  control  of  what  had  been 
relinquished  at  a  time  before  international  law  was  established. 
As  a  result,  the  United  States  long  denied  the  right  of  the  Ottoman 
Government  to  restrict  in  various  ways  the  activities  of  Ameri- 
can missionaries  there  engaged  in  propagating  Christianity.  The 
United  States  protested,  for  example,  against  the  closing  of  estab- 
lished places  of  worship  found  to  be  without  an  imperial  permit, 
as  required  under  existing,  although  obsolete  laws;  it  insisted 
that  the  conversion  of  a  dwelling  house  into  a  chapel  or  school 
without  the  sanction  of  such  a  permit  did  not  justify  local  in- 
terference ;  ^  it  complained  of  the  rigor  of  the  censorship  of  re- 
ligious literature ;  ^  it  objected  to  the  persecution  of  Turkish 
subjects  employed  by  or  otherwise  connected  with  American  mis- 
sionary institutions.^ 

In  China,  the  United  States  acquired,  by  treaty,  rights  of  re- 
ligious freedom  for  American  citizens  in  the  domain  of  that  State. 
Discrimination  against  native  Chinese  converts  to  Christianity 
has  been  protested  against;  indemnification  of  those  persecuted 
by  reason  of  their  faith  has  been  urged ;  and  finally,  by  treaty 
the  United  States  has  secured  assurance  of  complete  protection 
for  such  individuals.^ 

Rev.  Droit  Inf.,  1  ser.,  XII,  363,  373,  375,  quoted  in  Moore,  Dig.,  V,  813-814. 
See,  also,  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Straus,  Minister  to  Turkey,  April 
20,  1887,  For.  Rel.  1887,"  1094,  Moore,  Dig.,  V,  802;  Mr.  Blaine,  Secy,  of 
State,  to  Mr.  Hirsch,  Minister  to  Turkey,  Dec.  14,  1891,  For.  Rel.  1892,  527, 
Moore,  Dig;.,  V,  831.     See,  also,  infra,  §  259-261. 

1  Mr.  Foster,  S?cv.  of  State,  to  Mr.  Thompson,  Minister  to  Turkey,  Noy. 
29,  1892.  For.  Rel.  1892,  609,  611-612,  Moore,  Dig;.,  V,  822;  Mr.  Blaine, 
Secy,  of  State,  to  Mr.  Hirsch,  Mini.ster  to  Turkey,  Dec.  14,  1891,  For.  Rel. 
1892,  527,  Moore,  Dig.,  V,  831;  President  Harrison,  Annual  Mes.sage,  Dec. 
6,  1892,  For.  Rel.  1892,  xy,  Moore,  Dig.,  V,  823;  Mr.  Wharton,  Acting  Secy, 
of  State,  to  Mr.  MacNutt,  No.  249,  Oct.  1,  1891,  For.  Rel.  1891,  757, 
Moore,  Dig.,  V,  832,  note. 

*  See  documents  cited  in  Moore.  Dig.,  V,  829-830;  also  correspondence 
concerning  restrictions  upon  the  sale  of  the  Bible  contained  in  For.  Rel.  1905, 
898-911,  and  id.,  1906,  II.  U14-1416. 

'  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Straus,  INIinister  to  Turkey,  April  20, 
1887,  For.  Rel.  1887,"  1094,  Moore,  Dig.,  V,  802;  Mr.  Blaine,  Secy,  of  State, 
to  Mr.  Hirsch,  Minister  to  Turkey.  Dec.  14,  1*><91,  For.  Rel.  1892,  527,  Moore, 
Dig.,  V,  831;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Newberry,  Charge  d'Af- 
faires  ad.  int.,  May  15,  1893,  632,  Moore,  Dig.,  V,  825,  noted;  Mr.  Adee, 
Acting  Secy,  of  State,  to  Mr.  Terrell,  Minister  to  Turkey,  Sept.  6,  1895,  For. 
Rel.  1895,  II,  1281-1282,  Moore,  Dig.,  V,  827.  James  Harry  Scott,  The  Law 
Affecting  Foreigners  in  Egypt,  Edinburgh,  1907,  Chap.  VII,  "Religious 
Protection." 

*  Art.  XXIX  treaty  between  the  United  States  and  China  of  June  18,  1858, 
Malloy's  Treaties,  I,  220;  Art.  IV  treaty  of  July  28,  1868,  id.,  I,  235;  Art. 
XIV  treaty  of  Oct.  8,  1903,  id.,  I,  268.  Sec,  also,  Mr.  Denlw,  Minister  to 
China,  to  the  Tsung-li  Yamen.  April  9,  1897,  For.  Rel.  1897,  8.3,  Moore,  Dig., 
V,  459 ;  Mr.  Hay,  Secy,  of  State,  to  Mr.  Conger,  Minister  to  China,  Oct.  30, 
1900,  For.  Rel.  1900,  224,  Moore,  Dig.,  V.  460-461. 

383 


§  217]     GENERAL  RIGHTS  OF  PROPERTY   AND   CONTROL 

(v) 
§  217.   Freedom  of  Speech. 

A  State  may  exercise  a  censorship  over  what  is  written 
and  spoken  within  its  territory.  No  power  can  justly  complain 
because  its  nationals  within  a  foreign  country  are  not,  in  accord- 
ance with  the  local  law,  permitted  to  enjoy  entire  freedom  of 
speech.^  In  countries  where  liberal  forms  of  government  pre- 
vail, such  a  right  may  be  lodged  in  the  people,  as  in  the  case  of 
the  United  States,  where  it  is  guaranteed  by  the  Constitution.^ 
The  Department  of  State  has  always  denied  the  existence  of  any 
duty  on  the  part  of  the  Government  to  suppress  public  utter- 
ances regarded  as  hostile  to  other  friendly  States.^  In  its  deal- 
ings with  China,  however,  where  the  press  is  controlled  by  a 
governmental  censorship  as  a  matter  of  public  police,  and  where 
publications  in  various  forms  have  been  circulated  which  have 
served  to  endanger  the  safety  of  the  lives  and  property  of 
foreign  residents,  the  United  States  has  frequently  requested  the 
suppression  of  anti-foreign  publications.'* 

It  is  not  believed  that  any  duty  imposed  upon  a  territorial 
sovereign  to  check  utterances  within  its  domain  proving  to  be 
injurious  to  the  safety  of  a  foreign  State  could  be  removed  by 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Washburne,  March  1,  1873,  MS.  Inst. 
France,  XIX,  67,  Moore,  Dig.,  II,  166. 

^  The  First  Amendment  declares  that  Congress  shall  make  no  law  "abridg- 
ing the  freedom  of  speech,  or  of  the  press." 

^  Mr.  Seward,  Secv.  of  State,  to  Blacque  Bey,  Turkish  Minister,  Jan.  20, 
1869,  MS.  Notes  to  turkey,  I,  29,  Moore,  Dig.,  II,  164;  Mr.  Fish,  Secy,  of 
State,  to  Mr.  Roberts,  Spani,sh  Minister,  June  1,  1869,  MS.  Notes  to  Spanish 
Legation,  VIII,  280,  Moore,  Dig.,  II,  165;  Same  to  Mr.  Robb,  Feb.  25,  1873, 
98  MS.  Dom.  Let.  12,  Moore,  Dig.,  II,  165;  Mr.  Blaine,  Secv.  of  State,  to 
Mr.  Hirsch,  Minister  to  Turkey,  Jan.  7,  1891,  MS.  Inst.  Turkey,  V,  194, 
Moore,  Dig.,  II.  167;  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Lowell,  Dec. 
4,  1883,  MS.  Inst.  Great  Britain.  XXVII,  69 ;  same  to  same,  Nov.  24,  1884, 
id.,  349,  Moore,  Dig.,  II.  170. 

See,  also,  Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassador,  Jan. 
23,  1911,  For.  Rel.  1911,  393;  same  to  same,  June  7,  1911,  where  it  was  said  : 
"I  need  not  point  out  to  your  excellency  that  this  free  speech  and  freedom  of 
the  press  are  two  of  the  most  sacred  rights  guaranteed  by  the  Constitution  of 
this  country ;  that  they  are  absolutely  inviolable  rights ;  and  that  although 
it  may  for  a  moment  appear  that  such  rights  should  be  to  a  greater  or  less 
extent  curtailed,  a  continuous  national  growth  and  development  of  more  than  a 
century  and  a  quarter  demonstrates  beyond  the  possibility  of  a  doubt  that  the 
public  intelligence  necessary  to  a  firm  and  permanent  stabilitj'  and  progress 
requires  that  such  rights  shall  remain  inviolate." 

*  Mr.  Blaine,  Secv.  of  State,  to  Mr.  Denbv.  Minister  to  China,  Dec.  3, 
1889,  MS.  Inst.  China,  IV,  475,  Moore,  Dig.,  11,  166.  See,  also,  correspond- 
ence with  China  in  1905,  relative  to  an  anti-American  bovcott  in  that  countrv, 
For.  Rel.  1905,  204-234,  particularly  Mr.  Root,  Secy,  of  State,  to  the  Chinese 
Minister,  Nov.  14,  1905,  id.,  232. 

384 


FREEDOM  OF  SPEECH  [§  217 

virtue  of  a  constitutional  provision  guaranteeing  freedom  of  speech 
to  the  inhabitants.  Such  an  instrument  could  establish  no  valid 
excuse  for  non-performance  of  an  obligation  laid  down  by  inter- 
national law.  As  yet  there  appears,  however,  no  indication  that 
that  law  charges  a  State  with  a  duty  not  to  guarantee  freedom 
of  speech  to  those  who  inhabit  its  territory. 


VOL.  I— 13  385 


TITLE   C 
RIGHTS  AND   DUTIES  OF  JURISDICTION 

1 
RIGHTS    OF   JURISDICTION 

a 
§  218.   In  General. 

The  exercise  of  jurisdiction,  that  is,  of  the  right  of  doing  justice, 
requires  a  decision  by  a  State  first,  as  to  the  lawfulness  or  unlaw- 
fulness of  acts ;  and  secondly,  as  to  the  effect  to  be  given  to  law- 
ful or  unlawful  acts.  These  decisions  are  distinct  in  kind.  The 
object  of  the  former  is  to  attach  a  legal  quality  to  an  act,  and  so 
to  establish  its  character.  The  object  of  the  latter  is  to  fix  the 
degree  of  respect  to  be  paid  to  the  legal  character  already  im- 
pressed upon  an  act. 

The  right  to  pass  upon  the  lawfulness  of  an  act  must  necessarily 
be  the  exclusive  possession  of  a  single  sovereign.^  Otherwise, 
as  has  oftentimes  been  observed,  differing  legal  consequences 
might  be  annexed  to  the  same  act,  rendering  it  both  lawful  and 
unlawful.^  The  right  must  also,  therefore,  in  every  case,  belong 
to  that  sovereign  or  political  power  which  exercises  control  over 
the  place  where  the  particular  act  is  committed.^  Thus  it  is  that 
a  State  may  determine  the  lawfulness  of  acts  committed  through- 

^  Declared  Mr.  Jefferson,  Secy,  of  State,  in  the  course  of  a  communi- 
cation to  Mr.  Morris,  Minister  to  France,  Aug.  16,  1793  :  "Every  nation  has, 
of  natural  right,  entirely  and  exclusively,  all  the  jurisdiction  which  may  be 
rightfullv  exercised  in  the  territory  it  occupies.  If  it  cedes  any  portion  of 
that  jurisdiction  to  judges  appointed  by  another  nation,  the  limits  of  their 
power  must  depend  on  the  instrument  of  ce.ssion."  Am.  State  Pap.,  For.  Rel., 
I,  167,  169.  Also  id.,  I,  147-148.  See,  also,  Marshall,  C.  J.,  in  Schooner 
Exchange  v.  McFaddon,  7  Cranch,  116,  136;  Papayanni  v.  Russian  Steam 
Navigation  Co.,  2  Moore's  Privy  Council  Cases,  n.  s.,  161;  Beale,  Cases  on 
Conflict  of  Laws,  I,  87. 

2  Grosscup,  J.,  in  Swift  v.  Philadelphia  &  R.  R.  Co.,  64  Fed.  59,  65;  Beale, 
Cases  on  Conflict  of  Laws,  IIL  Summary,  §  11. 

^  Holmes,  J.,  in  American  Banana  Co.  v.  United  Fruit  Co.,  213  U.S.  347. 
355-357. 

3Sb 


IN  GENERAL  [§  218 

out  the  national  domain,  whether  land  or  water,  or  upon  its  vessels, 
whenever  by  reason  of  their  character  or  position  they  are  re- 
garded as  subject  to  its  control.  Conversely,  a  State  cannot 
determine  the  lawfulness  of  occurrences  in  places  outside  of,  or 
not  assigned  constructively  to,  its  control.^ 

A  State  is  called  upon  to  determine  the  effect  of  the  lawfulness 
or  unlawfulness  of  an  act  when  it  has  been  committed  abroad, 
and  a  legal  or  illegal  character  impressed  upon  it  by  a  foreign 
power.  In  determining  the  respect  to  be  paid  to  that  character  by 
its  own  tribunals,  the  territorial  sovereign  may  not  unreasonably 
exercise  wide  discretion."  A  State  may,  for  example,  command  its 
national  not  to  commit  a  particular  act  in  a  foreign  country.  He 
who  in  defiance  of  the  prohibition  disobeys  the  command  therein, 
violating  no  law  of  that  country  by  so  doing,  and  thereupon  re- 
turns to  his  own  State,  may  doubtless  be  subjected  to  punish- 
ment. In  imposing  upon  him  a  penalty  for  disobedience,  the 
aggrieved  sovereign  does  not  pass  judgment  upon  the  lawfulness  of 
his  conduct  abroad  —  which  is  a  foreign  fact,  but  simply  declines 
for  reasons  of  policy  to  recognize  that  la^v^ulness  by  permitting 
it  to  shield  the  actor  from  prosecution.  On  the  other  hand,  the 
lawful  character  impressed  upon  an  act  by  the  vState  within  whose 
territory  it  occurred,  not  infrequently  receives  complete  recogni- 
tion in  a  foreign  country,  even  though  to  a  similar  act  there  com- 
mitted a  different  legal  quality  would  be  attached.  This  is  true 
when,  for  example,  that  country  has  not  endeavored  to  forbid 
the  commission  of  the  particular  act  in  the  place  where  it  was 
committed,  and  no  adverse  local  policy  presents  an  obstacle. 

The  law  of  nations  does  not  always  permit  a  State  to  disregard 
the  legal  or  illegal  quality  of  acts  committed  abroad.  This  is 
made  obvious  when  it  attempts  to  question  the  propriety  of  con- 
duct committed  by  an  alien  in  foreign  territory,  and  notably 
when  it  endeavors  to  punish  him  on  account  of  acts  there  com- 

»  Rose  V.  Himely,  4  Cranch,  241 ;  The  ApoUon,  9  Wheat.  362 ;  Le  Roy  v. 
Crowninshield,  2  Mason,  151;  American  Banana  Co.  v.  United  Fruit  Co., 
213  U.  vS.  347,  355-357.  See,  also,  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Hiilse- 
mann,  Austrian  Charge  d'Affaires,  Sept.  26,  1853,  H.  Ex.  Doc.  1,  33  Cong., 
1  Sess.,  33,  Moore,  Dig.,  II.  213. 

-  When  the  national  of  a  State  goes  abroad  and  commits  an  act  in  a  land 
where  civilization  does  not  prevail,  and  where  there  is  no  territorial  sovereign 
regarded  as  having  the  right  or  power  to  demand  obedience  to  its  will  or  to  im- 
nress  a  legal  or  illegal  qualitv  upon  acts,  the  individual  may  be  said  to  be  sub- 
iect  to  the  laws  of  his  own  State  in  so  far  as  they  are  applicable  to'^his  conduct. 
Unon  his  return  to  its  domain,  if  it  tests  the  propriety  of  his  conduct  by  those 
laws,  the  question  does  not  arise  whether  heed  should  l)e  paid  to  any  foreign 
local  effort  to  attach  a  leeal  quality  to  his  act,  because  there  existed  no  political 
power  regarded  as  capable  of  doing  so.  , 

387 


§218]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

mitted  which  are  not  in  any  way  directed  against  its  own  safety.^ 
The  according  of  recognition  to  the  legal  character  impressed  upon 
acts  by  the  foreign  State  within  whose  territory  they  were  com- 
mitted tends  to  check  abuses  of  jurisdiction. 


§  219.   The  Establishment  of  a  Judicial  System. 

The  exercise  of  jurisdiction  requires  the  establishment  of  courts 
of  justice  as  well  as  of  a  system  of  judicial  procedure  by  means 
of  which  the  general  decision  of  the  territorial  sovereign  concern- 
ing both  the  lawfulness  and  unlawfulness  of  acts  committed  within 
places  subject  to  its  control,  and  the  respect  to  be  paid  to  lawful 
or  unlawful  acts  committed  abroad,  may  be  enforced.  In  the 
establishment  and  maintenance  of  its  judicial  system  it  will  be 
seen  that  a  State  enjoys  large  freedom.  Subject  to  a  few  excep- 
tions fixed  by  the  law  of  nations,  it  will  be  found  that  aliens  within 
the  national  domain  are  subject  to  the  jurisdiction  of  the  terri- 
torial sovereign  and  amenable  to  its  laws.^ 

The  extent  of  the  jurisdiction  of  a  particular  tribunal  must 
always  in  one  sense  be  a  matter  of  domestic  law,  and  fixed  accord- 
ing to  the  will  of  the  territorial  sovereign.^  The  society  of  nations 
is  unconcerned  save  when  a  State  attempts  to  clothe  its  courts 
with  a  power  in  excess  of  that  which  it  itself,  according  to  the 
principles  of  international  law,  is  permitted  to  exercise.  The 
tribunal  upon  which  excessive  jurisdiction  is  locally  conferred 
will  doubtless  not  refrain  from  exercising  on  occasion  the  full 
measure  of  what  is  definitely  given  it,  regarding  as  political  any 
question  as  to  the  international  wrong  attributable  to  its  conduct, 

^  Extra-Territorial  Crime,  infra,  §  243. 

2  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Brook,  Jan.  7,  1887,  citing  Mr.  Marcy, 
Secy,  of  State,  to  Mr.  Fay,  Nov.  16,  1855,  162  MS.  Dom.  Let.  508,  Moore, 
Dis;.,  II,  92;  Opinion  of  Dr.  Wharton,  Solicitor  to  Dept.  of  State,  in  case  of 
William  A.  Davis  v.  Great  Britain,  1885,  cited  by  Mr.  Day,  Acting  Secy,  of 
State,  Aoril  6,  1898,  227  MS.  Dom.  Let.  228,  Moore,  Dig.,  VI,  699;  Mr. 
Bavard,  Secy,  of  State,  to  Mr.  Copeland,  Feb.  23,  1886,  159  MS.  Dom.  Let. 
138,  Moore,"  Dig.,  VI,  699.  See,  also.  State  v.  Neibekier.  184  Mo.  211,  221- 
222,  citing  McDonald  v.  State,  80  Wis.  407,  People  v.  McLeod,  1  Hill,  N.  Y. 
377,  S.  C.  25  Wend.  483,  Campbell  v.  Hall,  Cowp.  208,  Vattel,  bk.  2,  ch.  8, 
sees.  101,  102,  Story  on  Conflict  of  Laws,  518;  Luke  v.  Calhoun  County, 
52  Ala.  115,  121;    Carlisle  v.  United  States,  16  Wall.  147. 

^  Declared  Cockburn,  C.  J.,  in  Reg.  v.  Keyn :  "No  concurrent  assent  of 
nations  .  .  .  can  of  itself  without  the  authority  of  Parliament,  .  .  .  give  to 
the  courts  of  this  country,  independently  of  legislation,  a  jurisdiction  over 
the  foreigner  where  they  had  it  not  before."  2  Ex.  D.  63,  198,  Beale,  Cases 
oi  Conflict  of  Laws,  I,  1,  9.  See,  also,  Holland,  Studies  in  International 
Law,  199. 

388 


THE  ESTABLISHMENT  OF  A  JUDICIAL  SYSTEM     [§  219 

and  as  one  for  solution  solely  through  the  diplomatic  channel.^ 
Should,,  however,  the  extent  of  the  assertion  of  jurisdiction  of  a 
State  through  the  medium  of  its  own  judicial  agency  become  with 
its  consent  the  subject  of  adjudication  before  an  international 
tribunal,  the  decision  would  necessarily  rest  upon  the  require- 
ments of  the  law  of  nations. 

Save  for  the  general  obligation  to  conform  to  the  practices  of 
civilized  powers,  a  State  is  unfettered  in  its  choice  of  forms  of 
procedure  or  in  the  adoption  of  a  particular  code.  No  right  of 
supervision  or  dictation  is  lodged  abroad.-  Moreover,  the  action 
of  the  courts  in  interpreting  the  local  law  and  in  applying  rules 
of  procedure  is  not  regarded  as  subject  to  revision  by  any  external 
authority.'^  Thus  a  State  may  in  fact  decline  to  permit  the  correct- 
ness of  the  decision  of  its  o^^^l  tribunals,  or  the  reasonableness  of 
the  judicial  enforcement  of  a  particular  rule  to  become  the  sub- 
ject of  diplomatic  discussion.*    It  must  be  clear,  however,  that 

1  Cockburn,  C.  J.,  in  Regina  v.  Keyn,  2  Ex.  D.  63,  160,  quoted  in  Holland, 
Studies  in  International  Law,  199,  note;  Mortensen  v.  Peters,  Am.  J.,  I, 
526;  Simeon  E.  Baldwin:  "The  Part  Taken  by  Courts  of  Justice  in  the  De- 
velopment of  International  Law",  Yale  Law  J.,  X,  1;  John  C.  Gray,  The 
Nature  and  Sources  of  the  Law,  122. 

See,  also,  Marshall,  C.  J.,  in  Foster  and  Elam  v.  Neilson,  2  Pet.  253,  307, 
309 ;  Jones  v.  United  States,  137  U.  S.  202 ;  In  re  Cooper,  143  U.  S.  472, 
502-505 ;  Pearcy  v.  Stranahan,  205  U.  S.  257. 

2  Mr.  Webster,  Secv.  of  State,  to  the  President,  Dec.  23,  1851,  on  Thrasher's 
case,  6  Webster's  Works,  521,  528,  Moore,  Dig.,  II,  88;  Mr.  Marcy,  Secy, 
of  State,  to  Mr.  JacLson,  Charge  d' Affaires,  Jan.  10, 1854,  MS.  Inst.  Austria, 

I,  89,  Moore,  Dig.,  II,  88;  Mr.  Marcv,  Secy,  of  State,  to  Mr.  Starkweather, 
Minister  to  Chile,  Aug.  24,  1855,  MS.  Inst.  Chile,  XV,  124,  Moore,  Dig., 

II,  90;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Burton,  Mini.ster  to  Colombia, 
No.  137, 'April  27,  1866,  Dip.  Cor.  1866,  III,  522,  523,  Moore,  Dig.,  VI, 
660;  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Lowell,  April  25,  1882,  For. 
Rel.  1882,  230,  232-234,  Moore,  Dig.,  II,  97. 

3  "It  cannot  be  expected  that  any  government  would  go  so  far  as  to  yield 
to  a  pretension  of  a  foreign  power  to  revise  and  review  the  proceedings  of  its 
courts  under  the  claim  of  an  international  right  to  correct  errors  therein,  either 
in  respect  to  the  application  of  principles  of  law,  or  the  application  of  facts 
as  evidence  in  cases  where  the  citizens  of  such  foreign  power  have  been  con- 
victed. It  certainly  could  not  be  expected  that  such  a  claim  would  be  allowed 
before  the  party  making  it  had  first  presented  a  clear  case  -prima  facie  of  willful 
denial  of  justice  or  a  deliberate  perversion  of  judicial  forms  for  the  purpo.se  of 
oppression."  Mr.  Marcv,  Secv.  of  State,  to  Mr.  Jackson,  Chargd  at  Vienna, 
April  6,  1855,  MS.  Inst.  Austria,  I,  105,  Moore,  Dig.,  II,  90.  See,  also,  Mr. 
Frelinghuvsen,  Secv.  of  State,  to  Mr.  Lowell,  April  25,  1882,  For.  Rel.  1882, 
230,  232-234,  Moore,  Dig.,  II,  97;  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Brook, 
Jan.  7,  1887,  162  MS.  Dom.  Let.  508,  Moore,  Dig.,  II,  92;  Mr.  Olnev,  Secy, 
of  State,  to  Mr.  Chilton,  M.  C,  June  5,  1896,  210  MS.  Dom.  Let.  496,  Moore, 
Dig..  II,  94. 

*  See  the  position  of  Germany  respecting  the  attitude  of  Mr.  Olney,  Secy,  of 
State,  in  1895,  relative  %o  the  prosecution  of  Louis  Stern  at  Kissingen,  For. 
Rel.,  1895,  I,  454-488,  especially  Mr.  Olney,  Secy,  of  State,  to  Baron 
Thielmann,  German  Ambassador,  Sept.  26,  1895,  irf.,'469.  and  Baron  Thiel- 
mann,  German  Ambassador,  to  Mr.  Olney,  Secy,  of  State,  Oct.  1,  1895,  id., 
479.     For  an  abstract  of  the  correspondence,  cf.  Moore,  Dig.,  II,  93-94. 

389 


§219]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

the  courts  may  prove  to  be  the  instrumentahty  through  which 
a  State  either  denies  justice  or  directly  perpetrates  injustice 
upon  foreign  powers  or  their  nationals.  Under  such  circum- 
stances, the  nature  of  what  takes  place  is  not  disguised  or  altered 
by  reason  of  the  judicial  agency  which  commits  the  wTong.  In 
States  where  the  courts  are  independent  of  the  political  depart- 
ment of  the  government,  there  is  strongest  reason  to  withhold 
diplomatic  discussion  of  questions  which  have  become  the  sub- 
ject of  judicial  inquiry,  until  at  least  there  has  been  a  final 
adjudication  resulting  in  a  decision  deemed  by  a  foreign  State 
to  be  at  variance  with  international  law  or  the  terms  of  a 
treaty.^ 

Although  a  resident  alien  be  prosecuted  criminally  according 
to  a  system  possessing  certain  "harsh  features"  and  deficient 
in  many  safeguards  for  the  security  of  the  accused,-  without  trial 
by  jury  or  the  privilege  of  the  TVTit  of  habeas  corpus,  and  although 
the  judicial  proceedings  be  brief  and  summary,^  and  instigated 
upon  suspicion  rather  than  upon  proper  cause  alleged  under  oath, 
there  may  still  be,  in  the  particular  case,  no  solid  ground  for  com- 
plaint on  the  part  of  his  government.'*  A  State  must,  therefore, 
be  normally  reluctant  to  interpose  in  an  endeavor  to  interfere 
with  the  administration  of  justice  as  applied  impartially  to  its 
nationals  in  a  foreign  country.^  On  the  other  hand,  a  State  will 
be  quick  to  protest  if  the  judicial  system  of  another  works  pal- 
pable injustice  to  such  individuals,  either  as  a  natural  incident  of 
procedure,  or  as  a  direct  effect  of  adjudications.^ 

Instances  are  frequent  and  varied.  The  application  to  an  alien 
of  local  laws  sharply  at  variance  with  treaty  stipulations  contracted 
for  his  benefit,  will  arouse  complaint ;  ^  likewise  any  discrimination 

1  Mr.  Adee,  Acting  Secv.  of  State,  to  the  Italian  Ambassador,  No.  891, 
Oct.  1,  1910,  For.  Rel.  1910,  664,  670;  Mr.  Lansing,  Secy,  of  State,  to  the 
German  Ambassador,  No.  2217,  April  7,  1916,  with  reference  to  the  case  of 
the  Appam,  American  White  Book,  European  War,  III,  342,  343-344. 

2  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Jackson,  Charge  d'Affaires,  April  6, 
1855,  MS.  Int.  Austria,  I,  105,  Moore,  Dig.,  II,  89. 

3  Report  of  Mr.  Webster,  Secv.  of  State,  to  the  President,  Dec.  23,  1851,  on 
Thrasher's  case,  6  Webster's  Works,  521,  528,  Moore,  Dig.,  II,  88. 

4  Mr.  Marcy,  Secv.  of  State,  to  Mr.  Richter,  Feb.  21,  1854,  42  MS.  Dom. 
Let.  231,  Moore,  Dig.,  II,  90. 

5  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Jackson,  Charge  d'Affaires,  April  6, 
1855,  MS.  Inst.  Austria,  I.  105.  Moore.  Dig.,  II,  89;  Mr.  Forsyth,  Secy,  of 
State,  to  Mr.  Davee,  Feb.  7,  1838,  29  MS.  Dom.  Let.  330,  Moore,  Dig.,  VI, 
652.  . 

6  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Lowell,  April  25,  1882,  For. 
Rel.  1882,  230,  232-234,  Moore,  Dig.,  II,  97. 

7  Mr.  Marcv,  Secv.  of  State,  to  Mr.  Fay,  Nov.  16,  1855,  MS.  Inst.  Switzer- 
land, I,  39,  Moore,  "Dig.,  VI,  655;   Case  of  Dr.  M.  A.  Cheek  against  Siam, 

390 


THE    ESTABLISHMENT    OF   A    JUDICIAL    SYSTEM     [§  219 

against  him  on  account  of  his  nationahty,  especially  if  he  is 
subjected  to  criminal  prosecution.^  A  perversion  of  the  judicial 
system,^  manifested  by  the  institution  of  criminal  proceedings 
in  order  to  oppress  an  alien,  is  not  likely  to  be  tolerated  by  the 
State  to  which  he  belongs.^  If  his  trial  is  conducted  with  gross 
injustice/  if  the  local  law  be  violated,^  if,  while  in  custody  he 
be  accorded  treatment  harsh  beyond  measure,  or  if  he  is  held 
or  imprisoned  on  account  of  the  commission  of  an  act  not  for- 
bidden as  a  crime  by  the  local  law,  interposition  is  to  be  antici- 
pated, unless  local  remedies  afford  a  complete  means  of  redress 
and  are  within  the  reach  of  the  victim.^  Whenever  the  govern- 
ment of  his  own  State  has  solid  reason  to  believe  from  evidence 
before  it  that  a  denial  of  justice  has  occurred,  it  is  justified  in 
denying  the  pretension  of  the  foreign  prosecuting  State  that 
it  may  set  up  the  judgment  of  its  outi  tribunals  as  a  bar  to  the 
international  claim/ 

Moore,  Arbitrations  II,  1899-1908 ;  Mr.  Bavard.  Secv.  of  State,  to  Mr.  Brook, 
Jan.  7,  1887,  162  MS.  Dora.  Let.  508,  :Moore.  Dig..  11,  92;  Mr.  Blaine.  Secv. 
of  State,  to  Mr.  O'Connor,  Nov.  25,  1881,  139  MS.  Dom.  Let.  66-3,  Moore, 
Dig.,  II,  96. 

1  Report  on  Thrasher's  Case  bv  Mr.  Webster,  Secy,  of  State,  to  the  Presi- 
dent, Dec.  23,  1851,  6  Webster's  Works,  .530,  Moore^  Dig..  VI.  698;  Opinion 
of  Dr.  Francis  WTiarton,  SoHcitor  of  the  Dept.  of  State,  in  the  case  of  Wilham 
A.  Davis  v.  Great  Britain,  1885,  cited  in  note  of  Mr.  Dav,  .\cting  Secy,  of 
State,  to  Messrs.  Lauterbach,  Dittenhoefer  &  Limburger,  April  6,  1898,  227 
MS.  Dom.  Let.  228,  Moore,  Dig.,  VI,  699;  Mr.  Bavard,  Secv.  of  State,  to 
Mr.  Copeland,  Feb.  23,  1886,  159  MS.  Dom.  Let.  138,  Moore,  Dig.,  VI,  699; 
Case  of  C.  A.  Van  Bokkelen,  Moore,  Arbitrations,  II,  1807-1853,  Moore,  Dig., 
VI,  699. 

2  Mr.  Marcy,  Secv.  of  State,  to  Mr.  Jackson,  Charge  at  Vienna,  April  6, 
1855,  MS.  Inst.  Austria,  I.  105,  Moore,  Dig.,  II.  90. 

3  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Lowell,  April  25,  1882,  For. 
Rel.  1882,  230,  2.32-234,  Moore.  Dig.,  II,  97;  Mr.  Marcv,  Secv.  of  State, 
to  Mr.  Clay,  Minister  to  Peru,  No.  30,  May  24,  1855,  MS.  Inst  Peru,  XV, 
1.59,  Moore,  Dig.,  VI,  6.59;  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Jackson,  Min- 
ister to  Mexico,  Sept.  7,  1886,  MS.  Inst.  Mexico,  XXI.  574,  Moore,  Dig.,  VI, 
680;  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Fairchild,  Minister  to  Spain,  Jan. 
17,  1881,  MS.  Inst.  Spain,  XVIII,  591,  Moore,  Dig.,  VI,  6.56. 

*  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Langston,  Minister  to  Haiti,  No. 
23,  April  12,  1878,  MS.  Inst.  Hayti,  II,  136,  Moore,  Dig.,  VI.  6.56;  Mr. 
Evarts,  Secv.  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  April  19,  1879, 
MS.  Inst.  Mexico,  XIX,  570,  Moore.  Dig.,  VI,  696;  Mr.  Forsvth,  Secv.  of 
State,  to  Mr.  Welsh,  March  14,  1835,  27  MS.  Dom.  Let.  261,  Moore,  Dig., 
VI,  696. 

3  Case  of  Dr.  M.  A.  Cheek  v.  Siam,  Moore,  Arbitrations,  II,  1899-1908, 
Moore,  Dig.,  VI,  6.56. 

^  See,  for  example.  Case  of  C.  A.  Van  Bokkelen,  Moore,  .\rbitrations,  II, 
1807-1853,  Moore,  Dig.,  VI,  699;  also  Claims,  Denial  of  Justice,  infra, 
§  281-282. 

'  Note  of  Dr.  Francis  Wharton,  Wharton,  Dig.,  II.  672,  Moore,  Dig.,  VI, 
694;  Report  of  Mr.  Bayard,  Secv.  of  State,  to  the  President.  Feb.  26,  1887, 
S.  Ex.  Doc.  109,  49  Cong.,  2  Ses.s.,  Moore,  Dig.,  VI,  667;  also,  Claims,  Denial 
of  Justice,  infra,  §  283-285. 

391 


§  220]         RIGHTS   AND    DUTIES   OF   JURISDICTION 


The  Exercise  of  Jurisdiction  within  the  National  Domain 

(1) 
§  220.    On  Land. 

On  land,  the  territorial  sovereign  exercises  exclusive  jurisdic- 
tion throughout  its  domain.^  By  no  process  issuing  from  any 
other  authority  may  individuals  there  be  lawfully  held  in  restraint,* 
save  under  exceptional  circumstances  which  will  be  later  observed. 
By  no  command  emanating  from  a  foreign  power  may  acts  which 
contravene  the  local  law  be  rendered  lawful.  Thus  the  alien 
who  in  obedience  to  instructions  from  his  own  State  violates  that 
law,  is  not  exempt  from  prosecution.^  The  deserter  from  a  foreign 
ship,"*  as  well  as  the  fugitive  from  the  justice  of  a  foreign  country,^ 
find  themselves  safe  from  the  strong  arm  of  the  pursuer  unless  by 
treaty  or  otherwise  the  State  consents  to  the  exercise  of  foreign 
authority  within  its  limits.  Again,  the  officer  or  seaman  of  a 
foreign  vessel  is,  when  ashore,  subject  to  the  local  law.^ 

It  should  be  observed  that  the  courts  of  a  State,  and  notably 
those  of  the  United  States,  will  not  sit  in  judgment  upon  the 
acts  of  the  government  of  another  State  committed  within  its 
own   territory.     It   is  declared   that   "redress   of  grievances  by 

1  Marshall,  C.  J.,  in  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116, 
136. 

2  Mr.  Calhoun,  Secv.  of  State,  to  Mr.  Everett,  Aug.  7,  1844,  and  Sept.  25, 
1844,  MS.  Inst.  Great  Britain,  XV,  211  and  23,  respectively,  Moore,  Dig., 

II,  225. 

3  Compare  dicta  in  Horn  v.  Mitchell,  223  Fed.  549,  552;  also  Mr.  Webster, 
Secy,  of  State,  to  Lord  Ash  burton,  Aug.  6,  1842.  in  relation  to  McLeod's 
Case,  Webster's  Works,  VI,  301,  302-303,  Moore,  Dig.,  II,  29.  But  see  state- 
ment of  Senator  Calhoun,  in  the  Senate,  June  11,  1841,  Calhoun's  Works, 

III.  618,  Moore,  Dig..  II,  26. 

Exemptions  from  Jurisdiction,  Foreign  Military  Forces,  infra,  §  247-248. 
"No  command  of  a  foreign  sovereign  to  its  subject  can  legalize  a  wrong  com- 
mitted elsewhere."  Learned  Hand,  J.,  in  Earn  Line  S.  S.  Co.  v.  Sutherland 
S.  S.  Co.,  254  Fed.  126,  130. 

"  Mr.  Seward,  Secv.  of  State,  to  Mr.  Stanton,  Secy,  of  War,  April  15,  1863, 
60  MS.  Dom.  Let.  231,  Moore,  Dig.,  II,  370. 

5  Mr.  Rush,  Secv.  of  State,  to  Mr.  Hvde  de  Neuville,  April  9,  1817,  MS. 
Notes  to  Foreign  Legations,  II,  218,  Moore.  Dig..  IV,  245;  Mr.  Webster. 
Secy,  of  State,  to  Mr.  d'Argaiiz,  June  21,  1842,  Webster's  Works,  VI,  399, 
405,  Moore,  Dig.,  IV,  246;  Mr.  Buchanan,  Secv.  of  State,  to  Mr.  Wise,  Sept. 
27,  1845,  MS.  Inst.  Brazil,  XV,  119,  Moore,  Dig.,  IV,  246;  United  States  v. 
Rauscher,  119  U.  S.  407,  411. 

6  Mr.  Randolph,  Secv.  of  State,  to  Mr.  Hammond,  July  23,  1794,  7  MS. 
Dom.  Let.  55,  Moore,  Dig.,  II,  585.  See,  also.  United  States  v.  Thierichens, 
243  Fed.  419,  where  the  commander  of  an  interned  German  war  vessel  who 
was  charged  with  having  smuggled  from  the  vessel  property  into  the  United 
States  (when  the  United  States  was  a  neutral),  and  with  having  violated  the 
so-called  Mann  Act  of  June  25,  1910,  was  held  to  be  subject  to  criminal  prose- 
cution. 

392 


APPLICATION  OF  THE   LOCAL  LAW  [§  221 

reason  of  such  acts  must  be  obtained  through  the  means  open 
to  be  availed  of  by  sovereign  powers  as  between  themselves."  ^ 


(2) 
Ports  and  Bays.     Foreign  Merchant  Vessels 

(a) 

§  221.   Application  of  the  Local  Law. 

The  exercise  by  a  State  of  jurisdiction  over  its  ports  and  bays 
becomes  a  matter  of  international  concern  in  so  far  as  it  is  applied 
to  foreign  merchant  vessels.  Over  such  ships  and  their  occupants 
the  territorial  sovereign  may  assert  jurisdiction.^  Local  officials 
may  go  on  board  and  arrest  persons  charged  with  the  commission  of 
offenses  within  the  territorial  limits  of  the  State,  whether  on  such 

1  Underbill  v.  Hernandez,  168  U.  S.  250,  252.  In  that  case  it  appeared 
that  in  1892  the  defendant  General  Hernandez  had  been  a  commander  of 
certain  revolutionary  forces  in  Venezuela  which  achieved  success,  and  be- 
came formally  recognized  by  the  United  States  as  the  legitimate  government 
of  Venezuela.  The  plaintiff,  an  American  citizen,  who  had  been  engaged  in 
the  construction  of  a  waterworks  system  for  the  city  of  Bolivar,  had  been 
denied  a  passport  to  leave  that  city,  by  General  Hernandez,  who  had  assumed 
command  thereof.  This  action  was  brought  against  the  latter  in  New  York 
to  recover  damages  for  the  detention  caused  by  reason  of  his  refusal  to  grant 
the  passport,  for  alleged  confinement  of  Underbill  to  his  own  bouse,  and  for 
certain  alleged  acts  by  the  soldiers  of  Hernandez'  armv.  The  Supreme  Court 
of  the  United  States  agreed  with  the  conclusion  of  the  Circuit  Court  of  Ap- 
peals that  "the  acts  of  the  defendant  were  the  act=;  of  the  Government  of 
Venezuela,  and  as  such  are  mt  properly  the  subject  of  adjudication  in  the 
courts  of  another  government." 

See,  also,  the  opinion  of  Mr.  Justice  Holmes,  in  the  case  of  American 
Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  357-358;  opinion  of  Mr.  Justice 
Clarke,  in  Oetjen  v.  Central  Leather  Co.,  246  U.  S.  297 ;  Hewitt  v.  Speyer,  248 
Fed.  590,  s.C.  250  Fed.  367. 

^  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Wise,  Minister  to  Brazil,  Sept.  27, 
1845,  MS.  In  t.  Brazil,  XV,  119.  Moore,  Dig.,  II,  272;  Mr.  Everett,  Secv. 
of  State,  to  Mr.  Ingersoll,  Feb.  17,  1853,  MS.  Inst.  Great  Britain,  XVI,  192, 
Moore,  Dig.,  II,  273;  Mr.  Marcv,  Secv.  of  State,  to  Mr.  Keenan,  Consul  at 
Hong  Kong,  April  14,  1856,  21  Disp.  to  Consuls,  567,  Moore,  Dig.,  II,  288; 
Mr.  Seward,  Secv.  of  State,  to  Sir  F.  Bruce,  British  Minister,  March  16,  1866, 
Dip.  Cor.  1866,  I,  231,  Moore,  Dig.,  II,  292;  Opinion  of  Mr.  Taft,  Atty.- 
Gen.,  15  Ops.  Attys.-Gen.,  178;  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr. 
Randall,  M.  C,  March  14,  1884,  150  MS.  Dom.  Let.  276,  Moore,  Dig.,  II, 
278 ;  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Hall,  Minister  to  Central  America, 
March  12,  1885,  For.  Rel.  1885,  82,  83,  Moore,  Dig.,  II,  278.  See,  also,  Wil- 
denbus's  Case,  120  U.  S.  1 ;  Article  VI  I  of  Resolution  of  the  Institute  of 
International  Law,  1894,  Anmw.ire,  XIII,  330;  C.  N.  Gregory,  "Jurisdiction 
over  Foreign  Shins  in  Territorial  Waters",  Mich.  Law  Rev.,  II,  333;  P. 
Fedozzi,  "Des  delits  a  bord  des  nnvires  mnrchands  dans  les  eaux  territoriales 
etrangeres".  Rev.  Gen.  IV,  202;  Note,  Harv.  Law  R.,  XXIV,  489;  United 
States  V.  Bull,  Am.  J.,  V,  242  (Phil.  Is.  Sup.  Ct.  Jan.  15,  1910)  ;  A.  H.  Cbarteris. 
'The  Legal  Position  of  Merchantmen  in  Foreign  Ports  and  Waters,"  British 
Year  Book  of  Int.  Law,  1920-1921,  45. 

393 


§  221]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

vessels,^  or  elsewhere.^  To  make  the  arrest,  however,  of  an  inmate 
of  a  ship,  at  the  request  of  a  third  State,  within  whose  territory  he 
may  have  violated  the  local  law,^  or  by  reason  of  the  circumstance 
that  he  is  charged  with  the  commission  of  an  offense  when  the 
ship  was  on  the  high  seas,  has  been  regarded  as  an  abuse  of  power.'* 
In  the  process  of  exercising  jurisdiction  over  foreign  ships  the 
territorial  sovereign  is  doubtless  obliged  to  exercise  care.  Thus 
the  firing  of  a  solid  shot  at  a  passenger  vessel  for  the  sole  purpose 
of  compelling  her  to  show  her  flag,^  or  the  attempt  to  arrest  an 
occupant  by  means  of  a  force  imperiling  the  lives  of  innocent 
persons  on  board  or  the  safety  of  the  property  of  a  friendly  State, 
has  been  regarded  by  the  United  States  as  arbitrary  action  calling 
for  disavowal  by  the  State  whose  authorities  had  recourse  to  it.® 
Again,  the  hauling  dowTi  of  the  flag  of  a  merchant  vessel,  detained 
on  account  of  the  violation  of  local  customs  regulations,  has  been 
deemed  to  be  improper  conduct  justifying  the  demand  for  an 
expression  of  regret.^ 

1  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Jordan,  Jan.  23,  1849,  37  MS.  Dom. 
Let.  98,  Moore,  Dig.,  II,  272;  Same  to  Mr.  Campbell,  Consul  at  Havana, 
Nov.  1,  1S48,  10  MS.  Disp.  to  Consuls,  493,  Moore,  Dig.,  II,  272;  Mr.  Fish, 
Secy,  of  State,  to  Mr.  Marsh,  Minister  to  Italy,  No.  517,  May  2,  1876,  MS. 
Inst.  Italy,  I,  527,  Moore,  Dig.,  II,  276;  Opinion  of  the  Attorney-General 
quoted  by  Mr.  Evarts,  Secy,  of  State,  in  note  to  Mr.  Mendez,  Dec.  27,  1879, 
MS.  Notes  to  Spain,  X,  60,  Moore,  Dig.,  II,  277;  Mr.  Frelinghuysen,  Secy. 
of  State,  to  Mr.  Randall,  M.  C,  March  14,  1884,  150  MS.  Dom.  Let.  276, 
Moore,  Dig.,  II,  278. 

2  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Hall,  Minister  to  Central  America, 
March  12,  1885,  MS.  Inst.  Cent.  Am.,  XVIII,  488,  Moore,  Dig.,  II,  867; 
Mr.  Gresham,  Secy,  of  State,  to  Mr.  Huntington,  Dec.  30,  1893,  For.  Rel. 
1894,  296,  Moore,  Di  .,  II,  880. 

^  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Bromberg,  Consul  at  Hamburg,  Sept. 
1,  1853,  17  MS.  Desp.  to  Consuls,  70,  Moore,  Dig.,  II,  274;  Mr.  Fish,  Secy. 
of  State,  to  Mr.  Marsh,  Minister  to  Italy,  No.  516,  May  2,  1876,  MS.  Inst. 
Italy,  I,  526,  Moore,  Dig.    II,  277. 

*  Mr.  Gushing,  Attv.-Gen.,  Sept.  6,  1856,  8  Ops.  Attvs.-Gen..  73,  Moore, 
Dig.,  II,  290;  Mr.  Fish,  Secv.  of  State,  to  Mr.  Schenck,  Nov.  8,  1873,  MS. 
Inst.  Great  Britain,  XVIII,  431,  For.  Rel.  1874,  490,  Moore,  Dig.,  II,  293. 

The  territorial  sovereign  might  justly  assert  a  concurrent  right  to  punish 
such  an  offender  if  he  were  one  of  its  own  nationals,  provided  it  could  lawfully 
apprehend  him.  If  he  were  surrendered  by  the  master  of  the  ship,  no  difficulty 
would  arise. 

5  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Dupuv  de  Lome,  Spanish  Minister, 
June  21,  1897,  For.  Rel.  1897,  504,  Moore,  Dig.,  II,  280. 

«  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Huntington,  Dec.  30,  1893,  For. 
Rel.  1894,  296,  Moore," Dig.,  II,  880. 

'  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Phelps,  Minister  to  England,  Nov. 
6,  1886,  relative  to  the  case  of  the  Marion  Grimes,  For.  Rel.  1886,  362,  370, 
Moore,  Dig.,  II,  280;  Sume  to  Same,  Dec.  13,  1886,  For.  Rel.  1887,  451, 
Moore,  Dig.,  I,  864. 

Concerning  complaint  made  in  1873,  of  onerous  fines  imposed  on  American 
vessels  by  Spanish  authorities  in  Cuba  for  technical  violation  of  customs 
regulations,  see  Mr.  Fish,  Secv.  of  State,  to  Gen.  Sickles,  Minister  to  Spain, 
March  21,  1873,  For.  Rel.  1873,  II,  932,  Moore,  Dig.,  II,  319,  also  documents 

394 


APPLICATION  OF  THE  LOCAL  LAW  [§  221 

A  foreign  merchant  vessel  and  its  occupants  are,  upon  entering 
port,  subject  to  the  operation  of  the  civil  as  well  as  criminal  laws 
of  the  State.^  Thus  the  ship  may  be  obliged  to  conform  to 
local  regulations,  prohibiting,  for  example,  arrival  at  certain 
seasons  with  a  deck  cargo.^  The  master,  in  the  hiring  of  seamen,^ 
or  in  contracting  for  the  carriage  of  freight  to  foreign  countries, 
may  find  himself  reasonably  subjected  to  strict  limitations  im- 
posed by  local  statute."* 

there  cited.  See,  also,  award  of  Baron  Blanc,  Arbitrator  in  the  case  of  the 
American  ship  Masonic,  Moore,  Arljitrations,  II,  1055-1069.  Relative  to 
irregular  and  arbitrary  proceedings  directed  against  American  vessels  by 
Me.xican  customs  officers,  see  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Mor- 
gan, Minister  to  Mexico,  Jan.  31,  1883,  MS.  Inst.  Mexico,  XX,  568,  Moore, 
Dig.,  II,  323;  Same  to  Same,  Feb.  20,  1883,  concerning  the  arrest  and  treat- 
ment accorded  the  master  of  an  American  vessel  who  was  charged  with  smug- 
gling. For.  Rel.  1883,  625,  Moore,  Dig.,  II,  324. 

1  "Matters  concerning  the  ship  herself,  as  the  proprietary  title  to  her, 
damage  done  by  her,  salvage  due  from  her,  or  her  seizure  in  satisfaction  of  a 
debt,  will  belong  to  the  local  courts  whenever  referred  to  them  by  the  accepted 
rules  of  national  jurisdiction  applied  to  her  actual  situation  or  to  the  persons 
of  her  owners  or  others  interested  in  her."     Westlake,  2  ed.,  I,  269-270. 

Although  the  matter  relates  to  administrative  control  rather  than  to  juris- 
diction, it  may  be  here  observed  that  the  territorial  sovereign  is  not  entitled  to 
demand  the  custody  of  the  ship's  papers  of  a  foreign  merchant  vessel  entering 
port.  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Conger,  Minister  to  Brazil, 
Dec.  3,  1897,  For.  Rel.  1897,  42,  Moore,  Dig.,  II,  333,  also  documents,  id., 
II,  326-333. 

2  Correspondence  between  the  United  States  and  Great  Britain  relative  to 
the  English  Merchant  Shipping  Act  of  1876,  abstracted  and  cited  in  Moore, 
Dig.,  II,  282-283. 

"And  the  court  are  of  opinion  that  the  rights  of  property  and  exclusive  use 
granted  to  a  patentee  does  not  extend  to  a  foreign  vessel  lawfully  entering 
one  of  our  ports ;  and  that  the  use  of  such  improvement,  in  the  construction, 
fitting  out,  or  equipment  of  such  vessel,  while  she  is  coming  into  or  going  out 
of  a  port  of  the  United  States,  is  not  an  infringement  of  the  rights  of  an  Ameri- 
can patentee,  provided  it  was  placed  upon  her  in  a  foreign  port,  and  authorized 
by  the  laws  of  the  country  to  which  she  belongs."  Taney,  C.  J.,  in  Brown  v. 
Duchesne,  19  How.  183, 198-199.  Compare  Caldwell  v.  Van  Vlissengen,  9  Hare, 
415. 

''  Patterson  v.  Bark  Eudora,  190  U.  S.  169,  sustaining  the  application  to 
foreign  vessels  of  the  Act  of  Dec.  21,  1898,  30  Stat.  755,  763,  forbidding  the 
payment  of  seamen's  wages  in  advance,  in  the  case  of  a  seaman  shipped  on  a 
foreign  vessel  from  an  American  port;  also,  Chambers  v.  Steamship  Kestor, 
110  Fed.  432,  Moore,  Dig.,  II,  338. 

See  The  Ixion,  237  Fed.  142,  holding  that  the  Seamen's  Act  of  March  4, 
1915,  Chap.  153,  §  4,  38  Stat.  1165,  was  applicable  to  foreign  vessels  while 
in  harbors  of  the  United  States. 

Cf.  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Roustan,  French  Minister,  Aug.  26, 
1885,  relative"  to  the  Shipping  Act  of  the  United  States  of  June  26,  1884,  For. 
Rel.  1885,  386,  Moore,  Dig.,  II,  307.  While  a  State  may,  for  the  protection 
of  seamen  generally,  limit  the  freedom  of  a  foreign  master  as  to  the  terms  of  a 
shipping  contract  with  a  foreign  sailor,  concluded  within  its  territory,  it  has 
been  doubted  whether  the  territorial  sovereign  may  also  justly  demand  that 
shipping  articles  be  signed  before  a  local  shipping-master  rather  than  before 
the  consular  officer  of  the  country  to  which  the  foreign  vessel  may  belong. 
Mr.  Bavard,  Secy,  of  State,  to  Mr.  White,  Charg6  at  London,  Mar.  1,  1889, 
For.  Rel.  1889,  447,  Moore,  Dig.,  II,  334;  also  documents  cited  zr/.,  II,  336-338. 

*  See,  for  example,  the  provisions  of  the  so-called  Harter  Act  of  Feb.  13, 

395 


§22lJ         rights  and    duties   OF  .JURISDICTION 

In  subjecting  foreign  vessels  and  their  occupants  to  the  opera- 
tion of  the  local  law  a  State  is  not  deterred  by  any  requirement 
of  international  law  from  disregarding  the  lawful  character  of 
acts  committed  abroad,  as  in  a  foreign  port,  when  they  are  the 
proximate  cause  of  others  committed  within  the  national  domain 
and  contrary  to  a  statutory  prohibition.  No  undertaking  law- 
fully entered  into  abroad  and  contemplating  performance  in  that 
domain,  as  by  the  carriage  of  goods  thereto,  will  be  deemed  to 
be  entitled  to  respect  if  it  defies  the  will  of  the  sovereign  thereof. 
The  applicability  of  this  principle  to  vessels  engaged  in  foreign 
commerce  must  be  obvious.^ 


(b) 

§  222.    Matters  of  Internal  Order  and  Discipline. 

Solid  grounds  of  policy  have  long  rendered  it  inexpedient  for 
States  to  assert  jurisdiction  in  matters  relating  to  the  internal 
order  and  discipline  of  a  foreign  merchant  vessel,  and  affecting 
solely  the  ship  and  its  occupants.  Of  such  a  character  are  dis- 
putes between  masters  and  seamen,  involving  petty  criminal 
offenses  committed  by  members  of  a  crew.  Jurisdiction  has  in 
such  cases  generally  been  yielded  to  the  authorities  of  the  State 
to  which  the  vessel  belongs,  and  notably  to  consular  officers.^ 
Opinion  is  divided  whether  the  existing  practice  indicates  the 
general  relinquishment  of  a  right  normally  possessed  by  the  terri- 
torial sovereign,  or  is  to  be  ascribed  in  each  case  to  the  terms  of 
a  particular  agreement  by  which  local  jurisdiction  is  specifically 
surrendered.^    The  United  States  has  protested  against  the  asser- 

1893,  27  Stat.  445,  U.  S.  Comp.  Stat.  1918,  §§  8029-8031,  forbidding  clauses 
in  bills  of  lading  relieving  from  liability  for  negligence,  and  from  exercise  of 
due  diligence  in  equipping  vessels,  and  from  liability  for  errors  of  navigation, 
etc. 

1  See,  for  example,  the  application  of  the  Harter  Act  of  Feb.  13,  1893,  in 
Knott  V.  Bottanv  Mills,  179  U.  S.  69;  The  Germanic,  196  U.  S.  589,  598. 
Also  §  73,  chap.  349,  Act  of  Aug.  27,  1894,  28  Stat.  570,  amended,  Feb.  12, 
1913,  chap.  40,  37  Stat.  667,  U.  S.  Comp.  Stat.  1918,  §  8831,  with  respect  to 
trusts  in  restraint  of  import  trade. 

2  See,  for  example,  Wildenhus'  Case,  120  U.  S.  1 ;  Ex  parte  Anderson, 
184  Fed.  114. 

3  In  Wildenhus'  Case,  120  U.  S.  1,  the  Court  inclined  to  the  view  that 
Art.  XI  of  the  treaty  between  the  United  States  and  Belgium  of  March  9, 
1880,  was  a  mere  recognition  of  the  existing  practice  of  nations.  See,  also, 
opinion  of  Mr.  Gushing,  Attv.-Gen.,  8  Ops.  Attvs.-Gen.,  73;  Mr.  Fish,  Secv. 
of  State,  to  Mr.  Schenck,  March  12,  1875,  For.  Rel.  1875,  I.  592,  Moore,  Dig., 
II,  295;  Mr.  FreHnghuvsen,  Secy,  of  State,  to  Baron  Schaeffer,  Austrian  Min- 
ister, Nov.  13,  1883,  For.  Rel.  1883,  30,  Moore,  Dig.,  II,  302.     Compare  Mr. 

396 


MATTERS  OF  INTERNAL  ORDER  AND  DISCIPLINE     [§  222 

tion  of  jurisdiction  over  controversies  of  the  class  described,  by 
local  magistrates  in  the  territory  of  a  foreign  State  with  which 
no  adequate  agreements  had  been  concluded.^ 

It  is  generally  understood,  and  the  treaties  of  the  United  States 
frequently  provide,  that  disorders  on  board  of  a  vessel  which  are 
of  a  character  to  disturb  the  tranquillity  and  public  order  on 
shore,  or  concern  a  person  not  a  member  of  the  crew,  are  to  be 
dealt  with  by  the  local  courts.^  Those  courts  may,  therefore, 
be  called  upon  to  pass  upon  the  preliminary  question  whether  the 
particular  offense  charged  is  of  such  a  character.^  In  Wildenhus' 
Case  the  Supreme  Court  of  the  United  States  declared  that  a  dis- 
order was  of  a  kind  to  disturb  the  peace  of  a  port,  if  the  offense 
were  of  such  gravity  that  it  would  awaken  public  interest  on  shore 
when  it  became  known  there,  and  especially  if  it  were  of  a  character 
such  that  its  commission  within  the  territory  of  any  civilized 
State  would  result  in  the  severe  punishment  of  the  offender.  In 
that  case,  the  stabbing  and  killing  of  a  Belgian  seaman  by  another 
member  of  the  crew,  himself  also  a  Belgian,  on  board  of  a  Belgian 
steamship  moored  at  a  dock  in  New  Jersey  was  regarded  as  fur- 
nishing just  cause  for  local  prosecution.^ 

Marcv,  Secy,  of  State,  to  Mr.  Keenan,  Consul  at  Hong  Kong,  April  14,  1856, 
21  Disp.  to  Consuls,  567,  Moore,  Dig.,  II,  288;  Opinion  of  Mr.  Berrien, 
Attv-Gen.,  2  Ops.  Attys.-Gen.,  381,  Moore,  Dig.,  II,  286;  Mr.  Bayard,  Secy. 
of  State,  to  Mr.  Thompson,  Minister  to  Haiti,  July  31,  1885,  MS.  Inst.  Haiti, 
II,  511,  Moore,  Dig.,  II,  300. 

See,  also.  The  Gloria  de  Larrinaga,  196  Fed.  Rep.  590,  where  an  Ameri- 
can court  of  admiralty  declined  to  take  jurisdiction  in  the  case  of  a  claim  under 
a  British  Shipping  Act  for  short  allowance,  made  by  a  British  seaman  on  a 
foreign  ship  and  arising  in  foreign  waters. 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Schenck,  Nov.  8,  1873,  For.  Rel.  1874, 
^90,  Moore,  Dig.,  II,  293;  Same  to  Same,  March  12,  1875,  For.  Rel.  1875,  I, 
592,  Moore,  Dig.,  II,  295. 

2  For  example.  Article  XI  of  the  treaty  with  Belgium,  of  March  9,  1880, 
declared  that  "The  local  authorities  shall  not  interfere  except  when  the  dis- 
order that  has  arisen  is  of  such  a  nature  as  to  disturb  tranquillity  and  public 
order  on  shore,  or  in  the  port,  or  when  a  person  of  the  country  or  not  belong- 
ing to  the  crew  shall  be  concerned  therein."     Malloy's  Treatie.s,  I,  97. 

^  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Clay,  Minister  to  Peru,  July  18,  1855, 
MS.  Inst.  Peru,  XV.  171,  Moore,  Dig.,  II.  313;  Mr.  Frelinghuysen,  Secy,  of 
State,  to  Baron  Schaeffer,  Austrian  Minister,  Nov.  13,  1883,  For.  Rel.  1883, 
30,  Moore,  Dig.,  II,  302;  Mr.  Evarts,  Secy,  of  State,  to  Count  Lewcnhaupt, 
Swedish  and  Norwegian  Minister,  July  30,  1880,  MS.  Notes  to  Sweden  and 
Norway,  VII,  204,  Moore,  Dig.,  II,  315. 

^  120  U.  S.  1.  See,  also,  Mr.  Hay,  Secy,  of  State,  to  Baron  Fava,  Italian 
Ambassador,  July  19,  1900,  MS.  Notes  to  Italian  Legation,  IX,  440,  Moore, 
Dig.,  II,  314;  Commonwealth  v.  Luckness,  14  Philadelphia,  363,  Moore, 
Dig.,  II,  315;  Case  of  the  German  steamer,  Tom  G.  Corpi,  at  Brest,  1908, 
Rev.  Gen.  XV,  439. 

See  Art.  XXX  of  Regulations  concerning  the  Legal  Status  of  Ships  and 
their  Crews  in  Foreign  Ports,  adopted  bv  the  Institute  of  International  Law 
in  1898,  Annuaire,  XVII,  281,  J.  B.  Scott,  Resolutions,  151. 

397 


§  223]         RIGHTS  AND   DUTIES   OF   JURISDICTION, 

(C) 

§  223.  Civil  Disputes  of  Seamen  Arising  from  Their  Con- 
nection with  the  Ship. 

There  has  been  a  tendency  on  the  part  of  maritime  powers, 
such  as  the  United  States,  to  conchide  conventions  withholding 
from  domestic  courts  jurisdiction  in  civil  controversies  between 
seamen  and  the  masters  of  ships  on  which  the  former  served,  par- 
ticularly in  reference  to  the  adjustment  of  wages  and  the  execu- 
tion of  contracts.^  The  scope  of  certain  of  these  agreements  to 
which  the  United  States  has  become  a  party  has  been  the  subject 
of  frequent  adjudications  in  American  courts.-  Question  has 
arisen  whether  a  particular  stipulation  excluding  local  jurisdic- 
tion should  be  applied  when  it  would  entail  great  hardship  on 
account  of  the  absence  of  a  consular  officer ;  ^  and  whether  also 
an  appropriate  treaty  should  be  deemed,  for  constitutional  reasons, 
to  embrace  the  case  of  an  American  citizen.'^  In  numerous  cases 
the  terms  of  a  convention  have  been  acknowledged  to  be  appli- 
cable to  the  circumstances  of  the  case,  and  jurisdiction  has  been 
withheld.^ 

It  may  be  doubted  whether  in  the  absence  of  an  appropriate 
treaty,  the  territorial  sovereign  is  deterred  by  the  operation  of 
any  rule  of  international  law  from  exercising  through  its  local 
courts  jurisdiction  over  civil  controversies  between  masters  and 
members  of  a  crew,  when  the  judicial  aid  of  its  tribunals  is  in- 
voked by  the  latter,  and  a  libel  in  rem  is  filed  against  the  ship.® 

1  See,  for  example,  Art.  XI  of  consular  convention  with  Sweden,  of  June 

I,  1910,  Charles"  Treaties,  115;   Art.  XXIII  of  treaty  with  Spain  of  July  3, 
1902,  Mallov's  Treaties,  II,  1708. 

2  See  The'Ester,  190  Fed.  216,  where  the  decision  of  Smith,  J.,  embraces  a 
thorough  discussion  of  previous  cases;  also  The  Rindjani,  254  Fed.  913,  con- 
cerning consular  jurisdiction  over  a  wage  dispute  under  convention  with  the 
Netherlands,  of  May  23,  1878.  The  Seamen's  Act  of  1915,  38  Stat.  1164, 
1165,  was  here  deemed  not  to  apply  to  a  contract  made  in  Holland  to  be  per- 
formed on  a  Dutch  vessel,  both  parties  being  Dutch. 

3  The  Salomoni,  29  Fed.  534. 

^See,  for  example,  The  Neck,  138  Fed.  144,  where  the  libelant,  a  seaman 
on  a  foreign  vessel,  was  an  American  citizen,  and  was,  for  that  reason,  deemed 
to  have  a  constitutional  right  to  invoke  the  jurisdiction  of  a  court  of  admiralty 
within  the  United  States,  under  the  facts  of  the  case.  The  Court  appeared, 
moreover,  to  doubt  the  applicability  of  the  treaty  (that  with  Germany  of  Dec. 

II,  1871)  to  the  case. 

5  See,  for  example.  The  Bound  Brook,  146  Fed.  160 ;  Tellefsen  v.  Fee,  168 
Mass.  188;   The  Koenigen  Luise,  184  Fed.  170. 

«The  Ester,  190  Fed.  216,  221,  223;  also  The  Belgenland,  114  U.  S.  355, 
where  Mr.  Justice  Bradlev  declared  in  the  course  of  the  opinion  of  the  Court 
(363)  :  "Circumstances  often  exist  which  render  it  inexpedient  for  the  court 
to  take  jurisdiction  of  controversies  between  foreigners  in  cases  not  arising 
in  the  country  of  the  forum ;  as,  where  they  are  governed  by  the  laws  of  the 

398 


INVOLUNTARY   ENTRANCE  [§  224 

It  is  to  be  observed,  however,  that  American  courts  exercise  dis- 
cretion in  taking  or  withholding  jurisdiction  according  to  the  cir- 
cumstances of  the  particular  case.  Their  action  in  so  doing  is 
not  to  be  regarded  as  indicative  of  any  requirement  of  public 
international  law/ 

(d) 

§  224.   Involuntary  Entrance. 

A  foreign  vessel  forced  into  port  by  stress  of  weather,  or  by 
inevitable  necessity,  is  not  regarded  as  subject  to  the  local  juris- 
diction. The  involuntary  entrance  furnishes  a  ground  of  exemp- 
tion.^ Thus  the  imposition  of  a  fine  upon  a  foreign  ship  compelled 
to  put  into  port  for  such  a  reason  is  believed  to  lack  justification.^ 
Likewise,  goods  on  board  of  a  vessel  so  circumstanced  are  not 
regarded  as  subject  to  the  payment  of  duties.^  Exemption  from 
payment  depends,  however,  upon  proof  of  the  fact  of  the  ur- 
gency of  the  distress.  The  necessity  must  be  grave  ^  and  the 
proof  convincing^  [see  following  page  for  footnote  6]. 

countrj'  to  which  the  parties  belong,  and  there  is  no  difficulty  in  a  resort  to 
its  courts ;  or  where  they  have  agreed  to  resort  to  no  other  tribimals.  The 
cases  of  foreign  seamen  suing  for  wages,  or  because  of  ill  treatment,  are  often 
in  this  category ;  and  the  consent  of  their  consul  or  minister  is  frequently 
required  before  the  court  will  proceed  to  entertain  jurisdiction ;  not  on  the 
ground  that  it  has  not  jurisdiction;  but  that,  from  motives  of  convenience 
or  international  comity,  it  will  use  its  discretion  whether  to  exercise  jurisdic- 
tion or  not ;  and  where  the  voj'age  is  ended,  or  the  seamen  have  been  dis- 
missed or  treated  with  great  cruelty,  it  will  entertain  jurisdiction  even  against 
the  protest  of  the  consul." 

•  It  may  be  observed  that  the  Supreme  Court  of  the  United  States  has 
construed  the  Seamen's  Act  of  1915,  chap.  153,  38  Stat.  1164,  as  indicating 
no  design  on  the  part  of  the  Congress  to  assert  control  over  aliens'  contracts 
of  shipment  abroad  on  foreign  vessels,  and  of  advancements  in  pursuance 
thereof.  Sandberg  v.  McDonald,  248  U.  S.  185  ;  also  Neilson  v.  Rhine  Shipping 
Company,  248  U.  S.  205.    Coin-pare  Strathearn  S.  S.  Co.  v.  Dillon,  252  U.  S.  348. 

2  Hallet  &  Browne  v.  Jenks,  3  Cranch,  210,  219 ;  The  Short  Staple  v.  United 
States,  9  Cranch,  55 ;  The  Nue.stra  Senora  de  Regla,  17  Wall.  29.  See,  also, 
Mr.  Seward,  Secy,  of  State,  to  Mr.  Stoeckl,  Russian  Minister,  June  4  and  June 
13,  1864,  MS.  Notes  to  Russian  Legation,  VL  156,  157,  Moore,  Dig.,  H,  343 ; 
Mr.  Bayard,  Secv.  of  State,  to  Mr.  Phelps,  Nov.  6,  1886,  For.  Rel.  1886, 
362.  364-365;   Moore,  Dig.,  II,  343. 

3  Mr.  Uhl,  Acting  Secv.  of  State,  to  Mr.  Smvthe,  Minister  to  Haiti,  May 
3,  1894,  MS.  Inst.  Haiti,  III.  398,  Moore,  Dig.,  II,  349;  Report  of  Mr.  Davis. 
Committee  on  Foreign  Relations,  July  14,  1897,  on  case  of  Alfredo  Laborde 
and  others.  Competitor  prisoners.  Senate  Rep.  377,  55  Cong.,  1  Sess.,  5,  Moore, 
Dig.,  II,  349;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Phelps,  Nov.  6,  1886,  For. 
Rel.  1886,  362,  364-365,  Moore,  Dig.,  II,  343. 

« The  Brig  Concord,  9  Cranch,  387 ;  The  New  York,  3  Wheat,  59,  68 ; 
Opinion  of  Mr.  Wirt,  Attv.-Gen.,  1  Ops.  Attvs.-Gen.,  509;  Mr.  Bayard,  Secy, 
of  State,  in  Case  of  the  Rebecca,  Feb.  26,  1887,  Senate  Ex.  Doc.  109,  49  Cong., 
2  Sess.,  Moore,  Dig.,  II,  345. 

^  Declares  Wheaton  :  "The  danger  must  be  such  as  to  cause  apprehension 
in  the  mind  of  an  honest  and  firm  man.  I  do  not  mean  to  say  that  there  must 
be  an  actual  physical  necessity  existing  at  the  moment;    a  moral  necessity 

399 


§  224]         RIGHTS   AND    DUTIES  OF  JURISDICTION 

Between  1831  and  1841,  there  arose  a  series  of  cases  where 
slaves  on  board  of  American  merchant  vessels,  wrecked  upon 
British  coasts,  or  forced,  by  stress  of  weatlicr  or  mutiny,  into 
British  ports,  were  liberated.^  The  involuntary  presence  of  a 
foreign  vessel  in  a  local  port  might  not  suffice  to  dissolve  the 
existing  relations  between  persons  on  board,^  or  to  justify  the 
local  authorities  in  taking  affirmative  steps  to  put  an  end  to  the 
existing  relationship,  unless  the  continuance  thereof  became  a 
source  of  real  disturbance  to  the  peace  of  the  country.^  It  might, 
however,  well  be  doubted  whether,  as  Mr.  Dana  pointed  out  in 
relation  to  the  foregoing  cases : 

The  local  authorities  must  give  active  aid  to  the  master 
against  persons  on  board  his  vessel  who  are  doing  no  more  than 
peacefully  and  quietly  dissolving,  or  refusing  to  recognize,  a 
relation  which  exists  only  by  force  of  the  law  of  the  nation  to 
which  the  vessel  belongs,  if  the  law  is  peculiar  to  that  nation, 
and  one  which  the  law  of  the  other  country  regards  as  against 
common  right  and  public  morals.'* 

In  all  of  the  cases  Great  Britain  paid  an  indemnity,  in  those  of  the 
Comet  and  the  Encomium,  as  a  result  of  diplomacy ;  ^   in  those  of 

would  justify  the  act ;  where,  for  instance,  the  ship  had  sustained  previous 
damage,  so  as  to  render  it  dangerous  to  the  hves  of  the  persons  on  board  to 
prosecute  the  voyage :  such  a  case,  though  there  might  be  no  existing  storm, 
would  be  viewed  with  tenderness ;  but  there  must  be  at  least  a  moral  neces- 
sity. Then,  again,  where  the  party  justifies  the  act  upon  the  plea  of  distress, 
it  must  not  be  a  distress  which  he  has  created  himself,  by  putting  on  board 
an  insufficient  quantity  of  water  or  of  provisions  for  such  a  voyage ;  for  there 
the  distress  is  only  a  part  of  the  mechanism  of  the  fraud,  and  cannot  be  set 
up  in  excuse  for  it ;  and  in  the  next  place,  the  distress  must  be  proved  by  the 
claimant  in  a  clear  and  satisfactory  manner.  It  is  evidence  which  comes  from 
himself,  and  from  persons  subject  to  his  power,  and  probably  involved  in  the 
fraud,  if  any  fraud  there  be,  and  is,  therefore,  liable  to  be  rigidly  examined." 
Note  on  Case  of  The  New  York,  3  Wheat.  59,  quoting  from  opinion  of  Sir 
William  Scott  in  the  case  of  The  Eleanor,  Edwards,  159,  160,  Moore,  Dig.,  II, 
340-341. 

6  The  iEolus,  3  Wheat.  392  [see  previous  page  for  this  note  reference]. 

1  These  were  the  cases  of  the  Comet,  1831;  the  Encomium,  1835;  the 
Hermosa,  1840;  and  the  Creole,  1841.  For  a  brief  statement  of  facts  of  the 
several  cases,  see  Moore,  Dig.,  II,  350-352. 

2  Mr.  Webster,  Secy,  of  State,  to  Mr.  Everett,  June  28,  1842,  Curtis' 
Life  of  Webster,  II,  106,  quoted  in  Moore,  Dig.,  II,  352 ;  Mr.  Webster,  Secy, 
of  State,  to  Lord  Ashburton,  British  Plenipotentiary,  Aug.  1,  1842,  Webster's 
Works,  VI,  303,  306,  Moore,  Dig.,  II,  353. 

'  See  opinion  of  Mr.  Bates,  umpire,  in  the  case  of  the  Enterprise,  and  in 
the  case  of  the  Hermosa,  Moore,  Arbitrations,  IV.  4372  and  4374  respectively, 
Moore,  Dig.,  II,  355  and  357,  respectively. 

*  Dana's  Wheaton,  note  No.  62.  See,  also.  Hall,  5  ed.,  202,  note.  Compare 
opinion  of  Mr.  Bates,  umpire,  in  the  case  of  the  Creole,  Moore,  Arbitrations, 
IV,  4375,  Moore,  Dig.,  II,  358. 

5  Mr.  Webster,  Secy,  of  State,  to  Mr.  Fillmore,  M.  C,  May  6,  1842,  House 
Ex.  Doc.  No.  242,  27  Cong.,  2  Sess.,  p.  1. 

400 


ASYLUM  ON  MERCHANT  VESSELS  [§  225 

the  Enterprise,  Hermosa  and  the  Creole,  in  pursuance  of  the  award 
of  Mr.  Joshua  Bates,  umpire  of  the  mixed  commission  under  the 
Convention  of  February  8,  1853.^ 

(e) 
§  225.   Asylum  on  Merchant  Vessels. 

The  case  of  the  individual  who,  after  having  committed  an 
offense  within  the  territory  of  a  State,  escapes  therefrom,  takes 
passage  abroad  on  a  foreign  merchant  vessel,  and  is  sought  to 
be  arrested  thereon  when  the  ship  enters  a  local  port,  presents  on 
principle  no  difficulties.  The  fugitive  has  no  connection  with  the 
ship  save  as  a  passenger.  His  violation  of  the  local  law  within 
the  national  domain,  and  its  necessary  effect  upon  the  public 
mind,  justify,  and  in  a  sense  compel,  the  territorial  sovereign  to  ap- 
prehend and  prosecute  the  wrongdoer  when  he  enters  its  domain. 
The  circumstance  that  he  is  a  passenger  in  transit  to  another 
country  on  board  of  a  vessel  entering  territorial  waters  merely  in 
order  to  make  a  port  of  call,  seems  to  be  immaterial.  The  ship  it- 
self is  not  exempt  from  local  jurisdiction  and  cannot  grant  asylum.^ 

The  views  of  the  Department  of  State  with  respect  to  the  matter 
did  not,  at  least  before  the  close  of  the  last  century,  appear  to  be 
harmonious.  Mr.  Bayard,  Secretary  of  State,  referring,  in  1885, 
to  the  case  of  one  Gamez,  declared  it  to  have  been  the  duty  of 
the  captain  of  an  American  ship  to  surrender  to  the  local  authorities 
of  Nicaragua,  upon  their  request,  a  political  fugitive  from  that 
country  who  had  voluntarily  taken  passage  at  San  Jose  de  Guate- 
mala, for  Costa  Rica,  knowing  that  the  vessel  would  enter  en 
mute  a  Nicaraguan  port.^ 

In  1890,  Mr.  Blaine,  as  Secretary  of  State,  in  a  communica- 

'  For  the  texts  of  the  awards  of  the  umpire,  see  Moore,  Arbitrations,  IV, 
4374-4378,  Moore,  Dig.,  IL  355-361. 

2  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Jordan,  Jan.  23,  1849,  37  MS.  Dom. 
Let.  98,  Moore,  Dig.,  II,  856 ;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Bassett,  Min- 
ister to  Haiti,  May  27,  1876,  MS.  Inst.  Haiti,  II,  79,  Moore,  Dip;.,  II,  857; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Thompson,  Minister  to  Haiti,  Nov.  3, 
1885,  For.  Rel.  1885,  542,  Moore,  Dig.,  II,  857. 

'  Instruction  to  Mr.  Hall,  Minister  to  Central  America,  March  12,  1885,  MS. 
Inst.  Cent.  Am.,  XVIII,  488,  Moore,  Dig.,  II,  867. 

It  appears  that  the  captain  of  the  ship,  having  declined  to  surrender  Gdmez, 
set  sail  without  proper  clearance  papers.  Criminal  proceedings  instituted 
against  the  master  in  his  absence  resulted  in  a  decision  ultimately  affirmed 
jy  the  Supreme  Court  of  Nicaragua,  announcing  the  exemption  of  foreign 
merchant  vessels  from  the  local  jurisdiction  with  respect  to  persons  on  board 
accused  of  political  offenses.  See  Mr.  Shannon,  Minister  to  Central  America, 
to  Mr.  Foster,  Secy,  of  State,  Oct.  13,  1892,  For.  Rel.  1892,  45-49,  Moore, 
Dig.,  II,  868-870. 

401 


§  225J        RIGHTS   AND   DUTIES   OF  JURISDICTION 

tion  to  Mr.  Mizner,  Minister  to  Central  America,  asserted  that 
in  Spanish-American  countries  it  was  the  habit  of  the  territorial 
sovereign  before  making  an  arrest,  to  apply  to  the  diplomatic 
or  consular  officer  of  the  State  to  which  the  vessel  belonged  for 
his  consent,  and  to  furnish  such  officer  with  proof  of  the  nature 
of  the  crime  alleged;  that  the  arrest  was  never  made  when  the 
representative  of  the  United  States  withheld  his  consent  or  the 
demand  wore  a  political  aspect;  that  powerful  causes  operated 
in  favor  of  the  exception  that  had  arisen,  exempting  political 
offenders  from  local  jurisdiction.^  ]\Ir.  Blaine  rebuked  the  IMin- 
ister  for  having  intervened,  by  authorizing,  in  compliance  with 
demands  of  Guatemala,  the  seizure  on  an  American  vessel,  at  a 
Guatemalan  port,  of  General  Barrundia,  a  passenger  in  transit 
from  Mexico  to  Panama,  who  had  been  charged  with  the  com- 
mission of  political  offenses  against  Guatemala.^  General  Bar- 
rundia had  resisted  capture,  and  had  been  killed.  By  reason 
of  his  intervention,  the  Minister  was  recalled.^ 

In  1893,  one  Bonilla,  a  native  of  Honduras,  boarded  an  Ameri- 
can steamer  in  Nicaragua  bound  for  Guatemala.  Lpon  the 
arrival  of  the  vessel  at  Amapala,  Honduras,  his  surrender  was  duly 
demanded  of  the  captain,  on  the  ground  that  Bonilla  had  been 
"sentenced  by  the  Courts  of  the  Republic."  The  captain,  after 
consultation  with  Mr.  Baker,  the  American  Minister  to  Nicaragua, 
who  was  himself  a  passenger  on  the  vessel,  refused  to  comply. 
The  captain  was  later  warned  that  if  he  attempted  to  leave  port 
before  delivering  Bonilla,  the  vessel  would  be  fired  upon.  The 
vessel,  having  previously  received  her  clearance  papers,  and  still 
retaining  custody  of  the  fugitive,  proceeded  to  leave  port  and  was 
fired  upon,  but  without  effect.  The  United  States  vigorously 
protested  against  this  action.  The  Government  of  Honduras 
promptly  gave  assurances  of  disavowal  and  regret.'* 

1  Communication  of  Nov.  18,  1890,  For.  Rel.  1890,  123,  133-141,  Moore, 
Dig.,  II.  859-8G2,  and  872-876.  Cf.,  also,  Mr.  Rockhill,  Third  Assist.  Secy, 
of  State,  to  Mr.  Williams,  Consul-General  at  Havana,  Sept.  5,  1895,  149  MS. 
Inst.  Consuls,  433,  Moore,  Dig.,  II,  862. 

2  Relative  to  the  impropriety  of  consular  intervention,  see  Mr.  Bayard,  Secy, 
of  State,  to  Mr.  Thompson,  Minister  to  Haiti,  Nov.  7,  1885,  MS.  Inst.  Haiti, 
II,  523,  Moore,  Dig.,  II,  858. 

"  President  Harrison,  Annual  Message,  Dec.  1,  1890,  For.  Rel.  1890,  iii, 
Moore,  Dig.,  II,  871.  In  that  document  it  is  stated  that  General  Barrundia 
had  failed  in  a  revolutionary  attempt  to  invade  Guatemala  from  Mexican 
territory,  and  that  his  seizure  was  attempted  in  order  that  he  might  be  tried 
"under  what  is  described  as  martial  law." 

See  Mr.  Mizner's  defense  in  For.  Rel.  1890,  144,  contained  in  part  in  Moore, 
Dig.,  II,  876. 

*For.  Rel.  1893,  154  el  seq.,  Moore,  Dig.,  II,  880-881. 

402 


ASYLUM  ON  MERCHANT  VESSELS  [§  225 

Mr.  Gresham,  Secretary  of  State,  on  Dec.  30,  1893,  enun- 
ciated the  general  principles  which  he  beheved  to  be  applicable 
in  such  cases.  He  declared  that  a  merchant  vessel  in  a  foreign 
port  was  within  the  local  jurisdiction  with  respect  to  offenses 
and  offenders  against  the  local  laws;  that  as  the  doctrine  of 
asylum  had  "no  recognized  application"  to  such  a  vessel,  the 
master  was  without  discretion  as  to  the  character  of  the  offense 
charged  ;  that  permitting  the  arrest  of  a  passenger  was  not  analo- 
gous to  proceedings  in  extradition  ;  that  the  master  was  not  com- 
petent to  determine  whether  the  evidence  was  sufficient  to  warrant 
arrest  and  commitment  for  trial,  or  to  impose  conditions  upon 
arrest ;  that  his  function  was  merely  passive,  being  confined  to 
permitting  the  regular  agents  of  the  law,  on  exhibition  of  lawful 
warrant,  to  make  the  arrest ;  that  American  diplomatic  and  con- 
sular officers  were  incompetent  to  order  surrender  by  way  of  quasi- 
extradition.  While  the  Secretary  declared  that  arbitrary  attempts 
to  capture  a  passenger  by  force,  without  regular  judicial  process, 
might  call  for  disavowal  when  the  resort  to  violence  endangered 
the  lives  of  innocent  men  and  the  property  of  a  friendly  nation, 
he  was  far  from  asserting  that  there  was  a  limitation  of  the  right 
of  jurisdiction  over  political  refugees  peculiar  to  Spanish  Ameri- 
can States.^  It  is  believed  that  ]\Ir.  Gresham  correctly  stated 
the  requirements  of  the  law.  It  must  be  clear  that  the  attempt 
to  prevent  an  enlightened  State,  whether  of  Spanish  America 
or  Europe,  from  exercising  as  complete  jurisdiction  over  foreign 
vessels  and  their  occupants  within  local  ports  as  is  commonly 
and  properly  enjoyed  by  maritime  powers  generally,  betokens 
disrespect  for  the  territorial  sovereign,  imputing  to  it  inability 
to  administer  justice,  and  breeding  contempt  for  its  legitimate 
authority. 

Over  the  fugitive  from  the  justice  of  a  foreign  State  who  is 
arrested  within  the  territory  of  a  third  State  and  brought  into  a 
local  port,  in  the  custody  of  foreign  agents  on  a  foreign  merchant 
vessel,  in  transit  to  the  place  of  trial,  the  territorial  sovereign 

'  Communication  to  Mr.  Hmitington,  For.  Rel.  1894,  296,  Moore,  Dig., 
II,  880.  "The  letter  to  Mr.  Huntington  was  communicated  by  Mr.  Gresham, 
Secretary  of  State,  to  Mr.  Baker,  United  States  Minister  to  Nicaragua,  Jan. 
31,  1894.  March  22,  1898,  Mr.  Sherman,  Secy,  of  State,  instructed  Mr. 
Merry,  Mr.  Baker's  successor,  that  he  was  to  be  guided  by  it."  Moore,  Dig., 
II,  882,  citing  MS.  Inst.  Cent.  Am.,  XXI,  290. 

Relative  to  the  unwilhngness  of  the  United  States  "to  acquiesce  in  the 
arbitrary  and  forcible  violation  of  its  flag  by  a  merely  military  power,  without 
due  and  regular  warrant  of  law  and  not  in  conformity  with  the  ordinary  course 
of  justice",  see  Mr.  Foster,  Secy,  of  State,  to  Mr.  Scruggs,  Minister  to  Ven- 
ezuela, Sept.  8,  1892,  For.  Rel.  1892,  623,  Moore,  Dig.,  II,  864. 

403 


§225]  RIGHTS   AND    DUTIES   OF   JURISDICTION 

may  doubtless  assert  control  and  justly  demand  that  the  indi- 
vidual be  set  at  liberty.^ 

(3) 

§  226.   The  Marginal  Sea.    Foreign  Merchant  Vessels. 

The  extent  of  the  jurisdiction  of  a  State  over  foreign  merchant 
vessels  within  territorial  waters  constituting  the  maritime  belt  or 
marginal  sea,  appears  to  be  proportional  to  the  degree  of  interest 
with  which  the  territorial  sovereign  regards  the  conduct  of  such 
ships  or  of  their  occupants.^ 

It  is  believed  that  over  the  vessel  at  anchor  within  such  waters 
a  State  may,  on  principle,  exercise  as  broad  a  jurisdiction  as  if 
the  ship  were  docked  in  a  local  port.^  In  the  assertion  of  the  right, 
similar  occurrences  would  not,  however,  be  likely  to  arouse  equal 
concern.  In  the  case  of  the  vessel  anchored  within  the  marginal 
sea,  its  position  with  respect  to  the  adjacent  land  and  its  contem- 
plated movements  might  impel  the  territorial  sovereign  to  ignore 
an  act  the  commission  of  which  on  board  of  a  vessel  in  port  would 
at  once  awaken  interest  and  lead  to  the  instigation  of  criminal 
proceedings. 

With  respect  to  what  occurs  on  the  passing  ship,  not  bound 
for  a  local  port,  the  concern  of  the  territorial  sovereign  is  less 
vital,  and  its  right  of  jurisdiction  less  broad.  According  to 
Article  VI  of  the  Rules  on  the  Definition  and  Regime  of  the  Terri- 
torial Sea,  adopted  by  the  Institute  of  International  Law  in  1894, 
crimes  and  offenses  committed  on  board  of  foreign  ships  passing 
through  the  territorial  sea  by  persons  on  board  of  them,  against 
persons  or  things  on  board  of  the  same  ships,  are,  as  such,  outside 
of  the  jurisdiction  of  the  littoral  State,  unless  they  involve  the 
violation  of  the  rights  or  interests  of  that  State  or  of  its  inhabit- 
ants (ressortissants)  not  forming  part  of  the  crew  or  passengers.^ 

The  territorial  sovereign  must  itself  be  the  judge  of  what  vio- 
lates its  own  rights  or  interests.  It  is  not,  however,  likely  to  find 
occasion  or  be  disposed  to  charge  a  violation  thereof,  unless  ap- 
prised of  the  commission  of  a  grave  offense  arousing  in  fact  the  in- 

^  See  Extradition,  infra,  §  341. 

2  See,  in  this  connection,  Westlake,  2  ed.,  I.,  266-267. 

5  According  to  Art  VIII  of  the  Rules  on  the  Definition  and  Regime  of  the 
Territorial  Sea,  adopted  by  the  Institute  of  International  Law  in  1894 :  "Ships 
of  all  nationalities  are  subject  to  the  jurisdiction  of  the  littoral  State  by  reason 
of  the  simple  fact  that  they  are  in  the  territorial  waters,  unless  they  are  only 
passing  through  them."  Annuaire,  XIII,  330,  J.  B.  Scott,  Resolutions, 
114 

*  Annuaire,  XIII,  329,  J.  B.  Scott,  Resolutions,  114. 

404 


IN  GENERAL  [§  227 

terest  of  persons  on  shore  or  elsewhere  outside  of  the  vessel  and 
within  its  territory.  If  a  passing  ship  or  an  occupant  thereof 
violates  the  local  law  and  with  respect  to  a  stranger  to  the 
vessel,  the  territorial  sovereign  may  fairly  assert  jurisdiction. 

WTiether  the  statutes  of  the  littoral  State  are  applicable  to 
occurrences  taking  place  within  the  marginal  sea,  and  especially 
to  acts  committed  on  foreign  passing  ships,  and  whether  also  the 
local  tribunals  are  clothed  with  requisite  jurisdiction  for  purposes 
of  adjudication,  present  questions  of  municipal  rather  than  inter- 
national law.  They  involve  the  inquiry  as  to  the  extent  to  which 
the  territorial  sovereign  has  seen  fit  to  exercise  its  legislative 
power.^  Inasmuch  as  the  marginal  sea  is  a  part  of  the  territory 
of  the  adjacent  State,  the  application  of  local  laws  to  acts  com- 
mitted within  such  waters  would  not  seem  to  be  dependent  upon  a 
specific  declaration  of  legislative  intention.  The  rule  of  con- 
struction actually  observed  would,  however,  be  one  attributable 
to  the  municipal  law. 

d 

The  High  Seas 

(1) 
§  227.   In  General. 

The  term  "high  seas"  may  be  said  to  refer,  in  international 
law,  to  those  waters  which  are  outside  of  the  exclusive  control 
of  any  State  or  any  group  of  States,  and  hence  not  regarded  as 
belonging  to  the  territory  of  any  of  them.-  The  ocean  until  it 
envelops  the  shores  of  a  littoral  State  and  constitutes  its  mari- 
time belt,  is  not  a  part  of  the  domain  of  any  territorial  sovereign. 
No  State  possesses,  therefore,  the  right  to  determine  the  lawful- 
ness of  acts  there  committed  unless  taking  place  on  board  of  one 

1  In  the  case  of  Reg.  v.  Keyn,  L.  R.  2  Ex.  Div.  63,  the  precise  question  was 
whether  a  particular  tribunal  (the  Central  Criminal  Court)  had  jurisdiction 
in  a  case  of  homicide  committed  by  a  foreign  master  on  a  foreign  ship  passing 
within  three  miles  of  the  British  coast.  It  was  held  that  the  Central  Criminal 
Court  lacked  jurisdiction.  While  it  was  declared  in  certain  dicta  that  in  the 
absence  of  Parliamentary  action  the  open  seas  adjacent  to  the  coast  were 
not  to  be  regarded  as  a  part  of  Her  Majesty's  dominions,  it  was  not  sug- 
gested that  if  the  sovereign  had  seen  fit  to  treat  such  waters  as  a  part  of  the 
national  domain,  persons  on  foreign  merchant  vessels  therein  would  not  be 
amenable  to  the  local  laws.  As  a  result  of  the  decision  the  British  Territorial 
Waters  Jurisdiction  Act  was  passed  in  1878. 

^  See  Second  Court  of  Commissioners  of  Alabama  Claims,  Stetson  t>.  Ignited 
States,  No.  3993,  class  1,  Moore,  Arbitrations,  IV,  433.5,  Moore,  Dig.,  II,  885. 

Compare  the  special  signification  attached  to  the  term  "high  seas"  within 
§  5346  of  the  Revised  Statutes,  in  the  case  of  United  States  v.  Rodgers, 
150  U.  S.  249.  See,  also,  Dana's  Wheaton,  169-170;  Woolsey,  6  ed.,  72-76; 
J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  Chap.  III. 

405 


§  227]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

of  its  own  ships,  or  unless  the  society  of  maritime  States  unites 
to  confer  upon  it  authority  to  do  so.^  The  relation  between  a 
vessel  and  the  country  to  which  it  belongs  is  sufficiently  close 
to  justify  the  latter  to  assert  a  right  of  jurisdiction  with  respect  to 
the  ship  and  its  occupants.^  Doubtless  the  society  of  nations  may 
agree  to  impose  upon  a  vessel  and  its  crew  a  duty  not  to  commit 
certain  acts  on  the  high  seas,  such  as  those  of  piracy ;  and  it  may 
empower  the  individual  State  to  punish,  in  behalf  of  the  society, 
those  who  defy  the  prohibition.  It  is  significant,  however,  that 
maritime  States  appear  to  be  reluctant  to  impose  generally  such 
burdens  or  to  create  such  sanctions.  Conversely,  there  happily 
remains  widespread  acceptance  of  the  principle  that  the  free  and 
unmolested  enjoyment  of  the  high  seas  in  times  of  peace  is  the 
privilege  of  every  ship  sailing  under  the  flag  of  a  civilized  State .^ 
If  a  State  may,  under  any  circumstances,  excuse  its  assertion 
of  jurisdiction  with  respect  to  the  conduct  of  a  foreign  vessel  and 
its  foreign  occupants  on  the  high  seas,  it  must  be  due  to  the  fact 
that  the  ship  or  those  individuals  were  participating  in  some 
activity  itself  internationally  illegal,  and,  therefore,  forbidden  by 
the  family  of  nations,  or  to  the  presence  of  extraordinary  circum- 
stances which,  for  the  moment  or  for  the  time  being,  justified  dis- 
regard of  the  normal  obligation  of  restraint. 

(2) 
§  228.    Jurisdiction  Resulting  from  Acts  of  Self-Defense. 

It  has  been  observed  that  on  grounds  of  self-defense  a  State 
may  under  certain  circumstances  not  unreasonably  exercise  its 

1  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Ryan,  Minister  to  Mexico,  Nov.  27,  1889, 
For.  Rel.  1889,  614,  Moore,  Dig.,  I,  931 ;  Award  of  Dr.  F.  de  Martens,  Ar- 
bitrator, in  the  case  of  the  Costa  Rica  Packet,  Moore,  Arbitrations,  V,  4952. 

A  State  not  infrequently  punishes  its  own  nationals  on  account  of  acts  com- 
mitted on  foreign  vessels  on  the  high  seas.  In  so  doing,  the  sovereign  merely 
imposes  a  penalty  for  disobedience  to  its  own  command,  declining  to  respect 
the  legal  quality,  whether  lawful  or  unlawful,  which  the  State  of  the  vessel 
attaches  to  the  act,  and,  at  the  same  time,  without  denjdng  the  right  of  that 
State  to  exercise  jurisdiction  should  the  actor  enter  its  domain.  See  Mr. 
Bayard,  Secy,  of  State,  to  Mr.  Connerv,  Charge  at  Mexico,  Nov.  1,  1887, 
For.  Rel.  1887,  751,  754,  Moore,  Dig.,  I,  933,  note;  Earl  Granville,  Secy,  of 
Foreign  Affairs,  to  Mr.  Lowell,  American  Minister  to  Great  Britain,  June  8, 
1880.     For.  Rel.  1880,  481,  Moore,  Dig.,  I.  934. 

•  Mr.  Marcy,  Secv.  of  State,  to  Chevalier  Bertinatti,  Sardinian  Minister,  Dec. 
1,  1858,  MS.  notes  to  Italian  States,  VI,  178,  Moore,  Dig.,  I,  930;  Mr.  Fish, 
Secy,  of  State,  to  Mr.  Schenck,  Minister  to  England,  Nov.  8,  1873,  MS. 
Inst.  Great  Britain,  XXIII,  431,  Moore,  Dig.,  I,  931 ;  Opinion  of  Mr.  Gush- 
ing, Attv.-Gen.,  8  Ops.  Attvs.-Gen.,  73;  Crapo  v.  Kellv,  16  Wall,  610;  Wil- 
son V.  McNamee,  102  U.  S."572.  574. 

3  President  Grant,  Annual  Message,  Dec.  1,  1873 ;  Richardson's  Messages, 
VII,  241,  Moore,  Dig.,  II,  897. 

406 


IN  GENERAL  [§  229 

Strong  arm  outside  of  its  own  domain,  both  on  sea  and  land,  and 
in  derogation  of  the  normal  rights  of  another  power.^  Such  action 
may  give  rise  to  adjudications  in  a  local  court,  and  these  may 
involve  inquiry  as  to  the  nature  of  the  acts  which  the  territorial 
sovereign  sought  to  prevent,  and  may  contemplate  the  imposi- 
tion of  penalties  upon  the  actors. 

Inasmuch  as  the  exercise  of  jurisdiction,  involving  a  judicial 
proceeding,  differs  sharply  in  character  from  the  taking  of  pre- 
ventive measures,  as  by  a  military  or  naval  force,  in  order  to 
avert  instant  danger  to  the  territory  or  inhabitants  of  a  State, 
there  may  be  cases  where  an  adjudication  in  a  local  forum  can- 
not well  be  regarded,  from  an  international  point  of  view,  as 
necessarily  incidental  to  the  defense  of  the  territorial  sovereign. 
Thus  it  may  be  contended  with  force,  that  the  grounds  justify- 
ing interference  with  a  foreign  ship  on  the  high  seas  failed  wholly 
in  the  particular  case  to  warrant  the  instigation  of  local  criminal 
proceedings  against  the  persons  controlling  the  vessel  after  it  had 
been  seized.  If  such  proceedings  are  not  internationally  illegal, 
it  must  be  for  the  reason  that  the  persons  controlling  the  ship  were 
not  only  guilty  of  conduct  which  the  prosecuting  State  had  the 
right  to  thwart,  but  also  committed  acts  of  such  a  kind  and  so 
affecting  that  State  that  in  proceeding  criminally  against  the 
offenders  it  might  count  on  the  definite  acquiescence  of  mari- 
time powers  generally. 

(3) 
Visit  and  Search 

(a) 
§  229.   In  General. 

The  right  to  visit  and  search  a  foreign  vessel  on  the  high  seas  is 
regarded  as  pertaining  to  a  belligerent  as  such,^  and  hence  a  privi- 
lege which,  in  time  of  peace,  no  State  may  justly  exercise.^     That 

1  Acts  on  the  High  Seas,  Case  of  The  Virgiuius,  supra,  §  68.  See  oral  argu- 
ment of  Mr.  Carter,  in  behalf  of  the  United  States,  Fur  Seal  Arbitration,  Pro- 
ceedings, XII,  101-102,  246-249. 

*  Lord  Stowell  in  the  case  of  Le  Louis,  2  Dodson,  210,  245 ;  The  Antelope, 
10  Wheat.  66 ;  The  Marianna  Flora,  11  Wheat.  1 ;  Mr.  Fish,  Secy,  of  State,  to 
Mr.  Borie,  Secy,  of  Navy,  May  18, 1869,  81  Dom.  Let.,  124,  Moore,  Dig.,  I,  193. 

Cf.  Visit  and  Search,  infra,  §  724. 

*  President  Fillmore,  Annual  Mes.sage,  Dec.  2,  1851,  Richardson's  Mes- 
sages, V,  117,  Moore  Dig.,  II,  888;  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Cueto, 
Spanish  Minister.  March  28,  1855,  contained  in  Senate  Ex.  Doc.  I,  35  Cong., 
Special  Sess.,  4,  Moore,  Dig.,  II,  889;  Mr.  Cass,  Secy,  of  State,  to  Mr.  Osma, 
Peruvian  Minister,  May  22,  18.58,  Brit,  and  For.  State.  Pap.,  L,  1145,  Moore, 
Dig.,  II,  891 ;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Adee,  Charg^  at  Madrid,  Dec.  31, 

407 


§  229]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

the  existence  of  the  right  depends  upon  that  also  of  a  state  of  war 
does  not  seem  to  be  due  to  the  behef  that  a  State  is  deterred  by 
any  rule  of  law  from  defending  itself  in  seasons  of  peace  by  the 
same  means  which  it  may  employ  when  it  is  a  belligerent.^  The 
true  reason  would  appear  to  be  that  what  may  be  and  usually 
is  a  frequent  need  of  a  belligerent,  rarely,  if  ever,  becomes  a  neces- 
sary mode  of  safeguarding  the  vessels  of  a  State  which  is  at 
peace. 

It  is  conceivable  that  on  grounds  of  self-defense  a  State  although 
not  engaged  in  war  might,  under  extraordinary  circumstances, 
offer  satisfactory  excuse  for  the  visit  and  search  by  a  public  vessel 
of  a  foreign  ship.  The  contingency  furnishing  conditions  neces- 
sary to  justify  such  action  would,  however,  appear  to  be  unlikely 
to  arise  with  any  degree  of  frequency.^  Therefore  it  may  be 
neither  unscientific  nor  unuseful  to  maritime  commerce  for  en- 
lightened powers  to  assert  that  the  right  is  the  possession  solely  of  a 
belligerent. 

(b) 

§  230.   As  a  Means  of  Suppressing  the  Slave  Trade. 

It  is  said  that  the  law  of  nations  does  not  permit  the  visita- 
tion and  search  of  foreign  vessels  in  time  of  peace  as  a  means  of 
suppressing  the  slave  trade.^     The  United  States  long  adhered 

1873,  For.  Rel.  1874,  976,  Moore,  Dig.,  II,  899;  Mr.  Evarts,  Secy,  of  State, 
to  Mr.  Fairchild,  Minister  to  Spain,  Aug.  11,  1880,  For.  Rel.  1880,  922,  Moore, 
Dig.,  II,  903;  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Taylor,  Minister  to  Spain, 
March  14,  1895,  For.  Rel.  1895,  II,  1177,  Moore,  Dig.,  II,  908. 

'  See  oral  argument  of  Mr.  Carter,  Proceedings,  Fur  Seal  Arbitration,  XII, 
246;   oral  argument  of  Mr.  Phelps,  id.,  XV,  206-207. 

2  "If  a  piratical  vessel  were  known  to  be  cruising  in  certain  latitudes,  and  a 
national  armed  ship  should  fall  in  with  a  yessel  sailing  in  those  regions,  and 
answering  the  description  given  of  the  pirate,  the  visitation  of  a  peaceable 
merchantman  in  such  a  case,  with  a  view  to  ascertain  her  true  character, 
would  give  no  reasonable  cause  of  offense  to  the  nation  to  which  she  might 
belong,  and  whose  flag  she  carried."  Mr.  Cass.  Secy,  of  State,  to  Mr.  Osma, 
Peruvian  Minister,  May  22,  1858,  Brit,  and  For.  State  Pap.,  L,  1145,  Moore, 
Dig.  II,  891,  892. 

3  Le  Louis,  2  Dodson,  210;   The  Antelope,  10  Wheat.  66,  116-123. 

"  It  was  at  first  sought  to  found  a  right  of  visit  and  search  in  such  cases  on 
the  theory  that  the  trade  constituted  a  violation  of  the  law  of  nations,  for  which, 
as  in  the  case  of  piracy,  the  offender  might  be  seized  on  the  high  seas  by  the 
cruiser  of  any  power.  This  theory  was  not  accepted;  but,  while  rejecting 
it,  the  British  courts,  in  the  early  part  of  the  nineteenth  century,  took  the 
ground  that,  where  a  foreign  vessel  was  captured  on  the  high  seas  and  was 
afterwards  proceeded  against  in  the  British  courts  as  a  prize,  the  fact  that  she 
was  engaged  in  the  slave  trade,  if  the  act  was  forbidden  by  the  laws  of  her 
own  country  as  well  as  by  those  of  Great  Britain,  would  defeat  a  claim  to 
restitution."  Moore,  Dig.,  II,  914,  citing  The  Amedie,  1  Acton,  240;  Tke 
Fortuna,  1  Dodson,  81 ;   The  Diana,  1  Dodson,  95. 

408 


AS  A  MEANS  OF  SUPPRESSING  THE  SLAVE  TRADE     [§  230 

to  that  position.^  Great  Britain  renounced,  in  1858,  claims  which 
it  had  previously  asserted  in  support  of  a  contrary  doctrine.' 
The  United  States,  after  having  long  declined  to  conclude  an 
agreement  yielding  to  foreign  vessels  a  right  to  visit  and  search 
American  ships  suspected  of  being  engaged  in  such  traffic,^  be- 
came, in  1862,  a  party  to  a  convention  with  Great  Britain  pro- 
viding that  the  vessels  of  war  of  the  contracting  parties,  clothed 
with  special  instructions,  might  visit  such  merchant  vessels  as 
should,  upon  reasonable  groimds,  be  suspected  of  participation 
ii  the  African  slave  trade,  or  of  having  been  fitted  out  for  that 
purpose,  and,  upon  well-founded  suspicions,  send  them  in  for 
trial  before  mixed  courts.^  By  an  additional  convention  of  June 
3,  1870,  the  mixed  courts  were  abolished,  and  arrangement  made 
that  the  jurisdiction  formerly  lodged  in  them  should  be  exercised 
by  courts  of  one  or  the  other  of  the  contracting  parties.  It  was 
agreed  also  that  upon  the  detention  by  a  cruiser  belonging  to 
one  party  of  a  merchant  vessel  of  the  other,  the  ship  should  be 
sent  in  to  a  port  of  its  own  country  for  adjudication,  or  handed 
over  to  a  cruiser  of  its  nationality,  if  one  should  be  available  in 
the  neighborhood.^  The  United  States  became  a  party  of  the 
General  Act  of  Brussels  of  July  2,  1890,  "permitting,  for  the 

1  Mr.  Adams,  Secy,  of  State,  to  Messrs.  Gallatin  and  Rush,  Nov.  2,  1818, 
Am.  State  Pap.  For.  Rel.  V,  72,  73,  Moore,  Dig.,  II,  918;  M-.  Adams,  Secy, 
of  State,  to  Mr.  Canning,  British  Minister,  Aug.  15,  1821,  MS.  Notes  to 
For.  Leg.,  Ill,  22,  Moore,  Dig.,  II,  919;  Mr.  Adams,  Secy,  of  State,  to  Mr. 
Hvde  de  Neuville,  French  Mini.ster,  Feb.  22, 1822,  MS.  Notes  to  For.  Leg..  Ill, 
50,  Moore,  Dig.,  II,  920;  Mr.  Adams,  Secy,  of  State,  to  Mr.  Canning,  British 
Minister,  June  24,  1823,  MS.  Notes  to  For.  Leg.,  Ill,  141,  Moore,  Dig.,  II, 
921 ;  Mr.  Webster,  Secv.  of  State,  to  Mr.  Cass,  Minister  to  France,  April  5, 
1842,  MS.  Inst.  France,  XIV,  272,  Moore,  Dig.  II,  929 ;  Mr.  Webster,  Secy, 
of  State,  to  Mr.  Everett,  Minister  to  Encland,  March  28,  1843,  Webster's 
Works,  VI,  331-342,  Moore,  Dig.,  II,  935;  U.  S.  Senate  Resolution,  June 
16,  1858;    For.  Rel.  1874,  9G3,  Moore,  Dig.,  II,  946. 

2  Mr.  Cass,  Secy,  of  State,  to  Mr.  Dallas,  Minister  to  England,  Feb.  23, 
1859,  MS.  Inst.  Great  Britain,  XVII,  150,  Moore,  Dig.,  II,  941;  Same  to 
Same,  June  30,  1859,  MS.  Inst.  Great  Britain,  XVII,  115,  Moore,  Dig.,  II, 
944;  Lord  Malmesburv,  British  For.  Secv.  to  Lord  Napier,  British  Min- 
ister, June  11,  1858,  Brit,  and  For.  State  Pap.,  L,  737,  738-739,  Moore,  Dig., 
II,  943. 

3  See  documents  contained  in  Moore,  Dig.,  II,  918  to  941,  relating  to  the 
Treaty  of  Ghent  of  Dec.  24,  1814,  and  to  .'subsequent  discussion  and  nego- 
tiations between  the  United  States  and  Great  Britain. 

According  to  Article  VIII  ot  the  Webster- Ashburton  treaty  of  Aug.  9, 
1842,  it  was  provided  that  the  United  States  and  Great  Britain  should  each 
maintain  on  the  African  coast  a  sufficient  squadron  to  enforce  "separately 
and  respectively  "  their  own  laws  for  the  suppression  of  the  slave  trade.  Mal- 
loy's  Treaties,  I,  655. 

^  Mallov's  Treaties,  I,  674,  676.  See,  also,  additional  Articles  concluded 
Feb.  17,  i863,  id.,  I,  687.  Concerning  the  treaty  of  1862,  see  Moore,  Dig., 
II,  946-948,  and  documents  there  cited. 

5  Arts.  II  and  III,  Malloy's  Treaties,  I,  694. 

409 


§  230]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

purpose  of  repressing  the  slave-trade,  a  mutual  search  within  a 
defined  zone  on  the  eastern  coast  of  Africa  of  vessels  of  less  than 
five  hundred  tons  burden."  ^ 

It  may  be  noted  that  the  convention  concluded  by  the  United 
States,  Great  Britain,  Russia  and  Japan,  July  7,  1911,  for  the  pres- 
ervation and  protection  of  the  fur  seals  frequenting  the  North 
Pacific  Ocean  contemplates  the  visit  and  search  of  ships  under 
the  flags  of  the  contracting  parties  when  suspected  of  being 
engaged  in  pelagic  sealing  within  specified  waters  thereof,  em- 
bracing Bering  Sea.^ 

(4) 

Piracy 

(a) 
§  231.   In  General. 

Piracy  is  an  offense  of  the  high  seas.  It  derives  its  inter- 
nationally illegal  character  from  the  will  of  the  society  of  nations 
which,  by  common  understanding,  confers  upon  each  of  its  mem- 
bers a  right  of  jurisdiction  over  any  persons  who,  regardless  of 
their  nationality,  commit  the  offense.^  The  nature  of  what  is 
forbidden  is  to  be  ascertained  by  reference  to  the  practice  of  mari- 
time States  generally.^ 

Local  legislation,  like  that  of  the  United  States,  may  provide 
for  the  punishment  of  persons  committing  acts  described  therein 
as  piratical.^     The  object  may  be  twofold  :  first,  to  punish  nationals 

1  For  the  text  of  the  convention,  see  Malloy's  Treaties,  II,  1964. 

2  Art.  I,  Charles'  Treaties,  61. 

^  It  is  "the  rejection  of  all  public  rule"  by  the  pirate  which  Westlake  re- 
gards as  the  reason  for  "the  universality  of  the  authority  and  jurisdiction" 
over  him.  Int.  Law,  2  ed.,  I,  181-183.  Hall  emphasizes  the  fact  that  as 
piratical  acts  are  "done  under  conditions  which  render  it  impossible  or  un- 
fair to  hold  any  State  responsible  for  their  commission",  and  that  as  no  re- 
course can,  therefore,  be  had  to  any  government  for  redress,  the  right  of 
seizure  and  puni-hment  is  the  possession  of  every  State.     Higgins'  7  ed.,  §  81. 

See,  also,  Dana's  Wheaton,  193-196;  Dana's  notes,  id.,  Nos.  83  and  84; 
Bonfils-Fauchille,  7  ed.,  §594;  Calvo,  5  ed.,  576-605;  Rivier,  I,  248-251; 
Woolsey,  6  ed.,  233-239;  Oppenheim,  2  ed.,  I,  §§  272-279.  Paul  Stiel,  Der 
Tatbestand  der  Piraterie  nach  geltendem  Volkerrecht,  Leipzig,  1905;  G.  Tam- 
baro,  Pirateria,  Turin,  1910;  D.  A.  Azuni,  Recherches  pour  Servir  a  I'His- 
toire  de  la  Piraterie,  Genoa,  1816. 

See  Charles  M.  Endicott,  Narrative  of  the  Piracy  and  Plunder  of  the  Ship 
Friendship,  of  Salem,  on  the  West  Coast  of  Sumatra,  1831,  Salem,  1859. 

*  In  the  course  of  the  opinion  of  the  Court  in  the  case  of  United  States  v. 
Smith,  Mr.  Justice  Story  said:  "And  the  general  practice  of  all  nations  in 
punishing  all  persons,  whether  natives  or  foreigners,  who  have  committed 
this  offense  against  any  persons  whatsoever,  with  whom  they  are  in  amity, 
is  a  conclusive  proof  that  the  offense  is  supnosed  to  depend,  not  upon  the 
particular  provisions  of  any  municipal  code,  but  upon  the  law  of  nations,  both 
for  its  definition  and  punishment."     5  Wheat.  153,  162. 

5  Moore,  Dig.,  II,  951. 

410 


PIRACY— IN    GENERAL  [§231 

who  commit  acts  that  are  forbidden,  as  well  as  aliens  who  commit 
them  on  vessels  under  the  flag  of  the  State ;  and  secondly,  to 
punish  any  persons  of  whatsoever  nationality  who,  on  whatso- 
ever ships,  commit  what  is  deemed  to  be  internationally  illegal 
conduct.  In  interpreting  the  legislation  of  the  United  States, 
the  Supreme  Court  has  been  careful  not  to  impute  to  Congress 
an  intention  to  assert  a  right  of  jurisdiction  with  respect  to  the 
acts  of  foreigners  on  board  of  foreign  vessels  on  the  high  seas, 
save  when  those  acts  might  be  fairly  regarded  as  amounting  to 
piracy  within  the  requirements  of  international  law.^  Acts  of 
such  a  character  committed  by  foreigners  on  vessels  not  under  the 
flag  of  any  civilized  State  have  been  regarded  as  within  the  scope 
of  the  statutory  law.^ 

The  zone  of  piratical  operations  is  the  high  seas.^  When  pirates 
commit  depredations  within  the  domain  of  a  particular  State, 
the  actors,  so  long  as  they  remain  there,  are  subject  to  the  sole 
jurisdiction  of  the  territorial  sovereign/ 

Pirates,  by  reason  of  their  occupation,  possess  no  authority 
which  any  civilized  State  is  bound  to  respect.  National  authoriza- 
tion of  the  commission  of  piratical  acts  could  not  free  them  from 
their  internationally  illegal  aspect.^    Before  Germany  became  a 

1  Concerning  Section  8  of  the  Act  of  April  30,  1790,  1  Stat.  113,  114,  see 
United  States  v.  Palmer,  3  Wheat.  610;  United  States  v.  Klintock,  5  Wheat. 
144;  United  States  v.  Holmes,  5  Wheat.  412;  United  States  v.  The  Pirates, 
5  Wheat.  184.  Cf.  conunentary  on  these  decisions  in  Moore,  Dig.,  II,  954- 
959. 

See  Chap.  12  of  the  Federal  Criminal  Code,  with  respect  to  piracy  and 
other  offenses  upon  the  seas,  U.  S.  Comp.  Stat.  1918,  §§  10463-10483  a. 
According  to  §  10463,  35  Stat.  1145,  "Whoever  on  the  high  seas,  commits 
the  crime  of  piracy  as  defined  by  the  law  of  nations,  and  is  afterwards  brought 
into  or  found  in  the  United  States,  shall  be  imprisoned  for  life." 

It  may  be  observed  that  piracy  is  frequently  made  an  extraditable  offense 
in  extradition  treaties  of  the  United  States.  Concerning  the  interpretation 
of  the  term  "piracy"  in  Art.  X  of  the  treaty  with  Great  Britain  of  Aug.  9, 
1842,  -see  In  re  Tivnan,  5  Best  &  S.  645,  Dip.  Cor.  1864,  II,  30;  Case  of  The 
Chesapeake,  Moore,  Extradition,  I,  316. 

s  United  States  v.  Klintock,  5  Wheat.  144,  152 ;  United  States  v.  The  Pi- 
rates. 5  Wheat.  184 ;    United  States  v.  Holmes,  5  Wheat.  412. 

3  Oppenheim,  2  ed.,  I,  §  272. 

*  §  302  of  the  Federal  Criminal  Code;  35  Stat.  1147,  U.  S.  Comp.  Stat. 
1918,  §  10475. 

5  Sir  William  Scott,  in  the  case  of  The  Helena,  4  Ch.  Rob.  3,  5-6.  At  the 
close  of  the  eighteenth  century,  the  Barbary  powers  had  by  no  means  aban- 
doned their  regular  depredations  under  official  authority  on  merchant  vessels 
generally.  Moore,  Am.  Diplomacy,  64-70.  As  late  as  1853,  Dr.  Lushington, 
in  the  case  of  The  Magellan  Pirates,  1  Spinks'  Eccl.  &  Adm.  Rep.  81,  83,  de- 
clared :  "Even  an  independent  State  may,  in  my  opinion,  be  guilty  of  pirati- 
cal acts.  What  were  the  Barbary  pirates  of  olden  times?  What  many 
of  the  African  tribes  at  this  moment?  It  is,  I  believe,  notorious  that  tribes 
now  inhabiting  the  African  coast  of  the  Mediterranean  will  send  out  their 
boats  and  capture  any  ships  becalmed  upon  their  coasts.     Are  they  not 

.411 


§231]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

belligerent  in  1914,  it  was  not  supposed  that  any  member  of  the 
family  of  nations  would  authorize  the  commission  in  its  behalf 
of  acts  on  the  high  seas  which  by  reason  of  their  unmoral  character 
sank  to  the  level  of  those  of  the  pirate,  even  though  they  differed 
technically  in  kind  from  those  committed  by  the  latter,^ 

(b) 
§  232.   Piratical  Acts. 

Piratical  acts  may  assume  a  variety  of  forms.^  They  may  in- 
clude, for  example,  homicide  or  robbery  or  burning.^  They  may 
be  directed  against  the  ship  on  which  the  actors  are  lodged,  or 
against  its  officers,  or  against  another  vessel  and  its  occupants.'* 
They  may  represent  the  united  effort  of  persons  controlling  a 
vessel  so  that  the  ship  itself  is  transformed  into  a  piratical  craft. 
Coincident  in  time  with  the  birth  of  the  United  States,  certain 
seas  were  infested  with  brigands  whose  regular  occupation  was  the 
robbery  and  seizure  of  merchant  vessels  as  a  means  of  enriching 
the  captors.^     The  purpose  of  their  undertakings  and  their  in- 

pirates  because,  perhaps,  their  sole  HveUhood  may  not  depend  on  piratical 
acts  ?  I  am  aware  that  it  has  been  said  that  a  state  cannot  be  piratical ;  but 
I  am  not  disposed  to  a--sent  to  such  dictum  as  a  universal  proposition." 

^  See  §  304  of  the  Federal  Criminal  Code,  with  respect  to  acts  committed 
by  an  American  citizen  under  color  of  a  foreign  commission,  and  deemed  to 
constitute  the  actor  "a  pirate  ",  35  Stat.  1147,  U.  S.  Comp.  Stat.  1918,  §  10477. 

»  Dana's  Wheaton,  192  to  196;   Dana's  Note  No.  83,  id. 

'  Declared  Chief  Justice  Marshall  in  United  States  v.  Klintock,  5  Wheat. 
144,  152  :  "The  Court  is  satisfied,  that  general  piracy,  or  murder  or  robbery, 
committed  in  the  places  described  in  the  8th  section,  by  persons  on  board 
of  a  vessel  not  at  the  time  belonging  to  the  subjects  of  any  foreign  power,  but 
in  possession  of  a  crew  acting  in  defiance  of  all  law,  and  acknowledging  obedi- 
ence to  no  government  whatever,  is  within  the  true  meaning  of  this  act,  and 
is  punishable  in  the  Courts  of  the  United  States.  Persons  of  this  description 
are  proper  objects  for  the  penal  code  of  all  nations."  See,  also,  Mr.  Justice 
Storv,  in  United  States  v.  Smith,  5  Wheat.  153,  160-162. 

*  United  States  v.  Holmes,  5  Wheat.  412  ;  Mr.  Marcy.  Secv.  of  State,  to  Mr. 
Starkweather,  Sept.  18,  1854,  MS.  In.st.  Chile,  XV,  107,  Moore,  Dig..  II,  965. 

The  capture  of  a  vessel  by  native  Africans  unlawfully  kidnapped,  and  to 
whom  a  status  of  slavery  had  not  been  validly  attached,  for  the  sole  purpose 
of  enabling  the  captors  to  regain  their  native  country,  and  not  for  that  of 
robberv  or  plunder,  was  held  not  to  be  piratical  in  the  case  of  the  Amistad, 
15  Pet.  518,  593-594.  See,  also,  Mr.  Seward,  Secy  of  State,  to  Mr.  Van 
Valkenburg,  Minister  to  Japan,  Feb.  19,  1869,  MS.  Inst.,  Japan,  I,  316,  Moore, 
Dig.,  II,  966. 

The  attempt  of  a  mutinous  crew  to  gain  control  of  a  vessel,  or  acts  of  vio- 
lence of  other  persons  on  board,  having  the  same  end  in  view,  do  not  consti- 
tute piracy.  If,  however,  the  actual  control  of  the  ship  be  displaced,  and  the 
mutineers  or  other  persons  thereon  employ  the  ship  for  their  own  purposes, 
in  total  disregard  of  the  authority  of  the  country  to  which  the  vessel  belongs, 
their  action  becomes  clearly  piratical.  The  piracy  in  such  case  is  the  conse- 
querce  of  the  successful  mutiny  or  overthrow  of  authority.  See  Dana's 
Whs  toti,  Dana's  Note  No.  83.  Compare  Opinion  of  Mr.  Hill,  Asst.  Atty.-Gen., 
14  Ops.  Attys.-Gen.,  589. 

*  "  At  the  close  of  the  eighteenth  century,  a  merchantman  built  for  long 

412 


PIRATICAL   ACTS  [§  232 

difference  as  to  the  nationality  of  the  victims  may  have  been 
responsible  for  the  belief  that  he  was  not  a  pirate  whose  acts  were 
directed  against  the  vessels  of  a  single  State.^  It  is  now  under- 
stood, however,  that  the  sea-brigand  cannot,  by  so  limiting  the 
scope  of  his  operations,  free  himself  from  a  piratical  character.^ 

As  piracy  does  not  necessarily  involve  the  taking  of  property, 
the  absence  of  an  intent  to  steal  is  not  necessarily  decisive  of  the 
character  of  what  takes  place.  According  to  Dana,  "the  motive 
may  be  gratuitous  malice,  or  the  purpose  may  be  to  destroy,  in 
private  revenge  for  real  or  supposed  injuries  done  by  persons  or 
classes  of  persons,  or  by  a  particular  national  authority."  ^ 

It  seems  to  be  distinctive  of  acts  of  piracy  that  they  are  com- 
mitted in  furtherance  of  private  ends  rather  than  for  a  public 
purpose  in  behalf  of  a  political  community.^  WTien  an  insurrection 
has  been  suppressed,  persons  who  were  associated  with  it  cannot 
save  the  character  of  their  acts,  otherwise  to  be  regarded  as  pirati- 
cal, on  the  ground  that  the  commission  thereof  was  in  aid  of  a 
public  cause." 

voyages  still  differed  little  in  armament  from  a  man-of-war.  Whether  it 
rounded  the  Horn  or  the  Cape  of  Good  Hope,  it  was  exposed  to  the  depreda- 
tions of  ferocious  and  well-armed  marauders,  and  if  it  passed  through  the 
Straits  of  Gibraltar  it  was  forced  to  encounter  maritime  blackmail  in  its  most 
systematic  and  most  authoritative  form."  J.  B.  Moore,  Principles  of  Ameri- 
can Diplomacy,  1918,  p.  104. 

1  See,  for  example,  the  language  of  Mr.  Justice  Nelson  in  United  States  v. 
Baker,  5  Blatchford,  6,  12,  cited  with  approval  by  Mr.  Bayard,  Secy,  of 
State,  in  a  communication  to  the  Secy,  of  the  Navy,  July  14,  1885,  156  Dom. 
Let.,  691,  Moore,  Dig.,  II,  1097;  also  suggestion  of  Chief  Justice  Marshall 
in  United  States  v.  Klintock,  5  Wheat.  144,  152. 

2  Dana's  Wheaton,  Dana's  Note  No.  83. 

^  Id.  ]Mr.  Dana  criticized  the  statement  oftentimes  made  that  an  act  of 
piracy  must  be  committed  by  one  possessed  of  an  mmnus  furaiidi.  Inasmuch 
as  the  Latin  verb  furari  refers  to  the  taking  of  property,  and  the  absence  of 
an  intention  to  steal  is  not  necessarily  proof  that  the  actor  is  not  possessed 
of  a  state  of  mind  which  may  serve  to  give  to  his  acts  a  piratical  character, 
this  objection  seems  well  taken.  If  it  be  necessary  to  resort  to  a  Latin 
phrase  in  order  to  describe  the  requisite  or  common  mental  state  of  a  pirate, 
it  might  be  well  to  consider  the  potentiahties  of  the  verb  fureri,  signifying  to 
rage,  to  be  furious,  to  act  like  a  madman,  or,  as  Cicero  employed  it,  to  act 
against  the  welfare  of  one's  own  coimtry.  In  view  of  the  nature  of  his  occu- 
pation and  the  contempt  with  which  he  is  regarded  by  civilization,  a  pirate 
might  be  said  to  possess  invariably  an  animus  furendi. 

*  Declares  Hall:  "Though  the  absence  of  competent  authority  is  the  test 
of  piracy,  its  essence  consists  in  the  pursuit  of  private,  as  contrasted  with 
public,  ends."  Higgins'  7  ed.,  p.  269,  §  81.  See,  also,  In  re  Tivnan,  5  Best 
&  S.  645,  Dip.  Cor.  1864,  II,  30;  Mr.  Fish,  Secv.  of  State,  to  Mr.  Bassett, 
Minister  to  Haiti,  Sept.  14,  1869,  MS.  Inst.  Haiti,  I,  150,  Moore,  Dig.,  II, 
1085.  Corn-pare  Smith's  Case  and  statement  of  counsel  for  the  prosecution 
published  in  Moore,  Dig.,  II,  1079;  also  case  of  the  Chesapeake,  Moore,  Ex- 
tradition, I,  316 ;   Burley's  Case,  id.,  I,  319,  Dip.  Cor.  1864,  II,  813. 

^"The  Confederate  cruiser  Shenandoah  continued  her  depredations  on 
United  States  vessels  in  the  seas  around  Cape  Horn  for  several  months  after 

413 


§  232]         RIGHTS   AND   DUTIES  OF  JURISDICTION 

It  is  always  possible  that  persons  participating  in  a  public 
expedition  involving  the  use  of  force  on  the  high  seas  may,  for 
their  own  purposes,  commit  depredations  not  in  fact  related  to  or 
necessitated  by  the  political  cause  which  they  serve.  Doubtless 
such  acts  are  not  necessarily  stripped  of  a  piratical  quality  (if 
they  would  otherwise  attain  it)  by  reason  of  the  general  purposes 
of  the  expedition.  Difficulty  may,  however,  arise  in  such  a  case 
to  distinguish  the  particular  act  which  could  be  fairly  regarded  as 
piratical  from  others  necessarily  attributable  to  and  connected 
with  the  public  cause.^ 

(c) 

§  233.   Acts  of  Unrecognized  Insurgents. 

At  the  present  time  there  remains  the  inquiry  as  to  the  extent 
to  which  the  particular  operations  of  unrecognized  insurgents 
are  to  be  fairly  regarded  as  both  internationally  illegal  and  pos- 
sessed of  a  piratical  character.  The  body  of  maritime  States  is 
not  necessarily  aflfected  by  the  operations  of  insurgents  directed 
solely  against  vessels  of  the  State  whose  government  it  is  sought 
to  overthrow.  For  that  reason,  there  has  been  at  times  a  dis- 
position on  the  part  of  such  States  to  pay  a  certain  degree  of 
respect  to  the  authority  conferred  upon  insurgent  vessels  and 
their  occupants,  before  formally  according  recognition  to  the 
insurgent  movement.^ 

As  the  success  of  an  insurgent  movement  produces  a  legal  con- 
dition of  affairs  demanding  recognition  by  foreign  powers,  the 
commission  of  acts  of  force  on  the  high  seas  by  means  of  which 
that  result  is  accomplished,  should  not,  as  Hall  declares,  be  treated 
as  piratical  merely  on  account  of  the  lack  of  external  recognition 
of  the  political  power  by  whose  authority  they  were  committed.^ 

the  fall  of  the  Confederate  government,  but  as  it  was  in  ignorance  the  British 
authorities,  on  her  arrival  at  Liverpool,  allowed  the  captain  and  crew  to  go 
free  and  delivered  the  ship  to  the  United  States."  Westlake,  2  ed.,  I,  186. 
See,  also,  Moore,  Arbitrations,  IV,  4176. 

1  Compare  the  situation  where,  under  an  extradition  treaty,  the  surrender 
is  demanded  of  a  person  accused  of  robbery,  and  where  it  is  contended  by  the 
accused  that  the  act  charged  was  incidental  to  a  political  movement  rendering 
the  offense  itself  political  in  character  and  hence  one  outside  of  the  scope  of 
the  treaty.  See  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Romero,  Mexican  Min- 
ister, Dec.  17,  1897,  relative  to  the  case  of  Jesus  Guerra,  For.  Rel.  1897, 
408-414 ;  also  Case  of  Christian  Rudovitz,  whose  extradition  from  the 
United  States  was  sought  by  Russia  in  1909.  Extradition,  Political  Offenses, 
infra,  §§  315-316. 

^  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Becerra,  Colombian  Minister,  June  15, 
1885,  For.  Rel.  1885,  272,  273,  Moore,  Dig.,  II,  1094;  Article  by  Dr.  Francis 
Wharton,  in  Albany  Law  J.,  Feb.  13,  1886,  125,  Moore,  Dig.,  II,  1100. 

3  HaU,  Higgins'  7  ed.,  §  81,  pp.  268-269. 

414 


ACTS  OF  UNRECOGNIZED  INSURGENTS  [§  233 

It  is  not  believed  that  the  acts  of  insurgents  when  duly  author- 
ized by  those  in  control  of  the  insurgent  movement,  if  committed 
in  furtherance  thereof,  and  directed  solely  against  the  vessels 
of  the  government  sought  to  be  overthrown,  should  be  regarded 
as  piratical.  A  Federal  court,  in  1885,  appeared  to  reach  a  some- 
what different  conclusion  in  the  case  of  the  Ambrose  Light}  In 
that  case  the  brig  Ambrose  Light,  commissioned  by  insurgent 
authorities  opposing  the  government  of  Colombia,  was  seized  in 
1885,  by  the  U.  S.  S.  Alliarwe,  in  the  Caribbean  Sea  about  twenty 
miles  to  the  westward  of  Cartagena.  None  of  the  officers  or 
crew  of  the  captured  ship  were  American  citizens.  The  vessel 
was  engaged  upon  a  hostile  expedition  against  Cartagena,  and 
designed  to  assist  in  the  blockade  and  siege  of  that  port  by  the 
rebels  against  the  established  government  of  Colombia.  It  did 
not  appear  that  depredations  or  hostilities  were  contemplated 
by  the  persons  controlling  the  vessel  other  than  such  as  might  be 
incidental  to  the  struggle  against  that  government  and  to  the  so- 
called  blockade  and  siege.  The  ship  was  brought  to  New  York 
and  there  condemned  on  the  ground  that  she  had  been  lawfully 
seized  because  "bound  upon  an  expedition  technically  piratical." 
In  reaching  this  conclusion,  the  court  stated  that  as  the  seizure 
had  been  made  by  the  Navy  Department  "under  the  regula- 
tions ",  and  as  the  case  was  prosecuted  by  the  Government  itself 
claiming  "its  extreme  rights",  the  court  was  bound  to  apply 
"the  strict  technical  rules  of  international  law."  ^  It  may  be 
doubted,  however,  whether  the  practice  of  maritime  States  has 
established  a  rule  of  international  law  which  would  denounce  as 
piratical  an  expedition  such  as  that  upon  which  the  Ambrose  Light 
was  bound,  under  circumstances  such  as  those  of  that  case.^  The 
United  States  has  at  various  times  expressed  reluctance  to  treat  as 
piratical  the  operations  of  insurgent  vessels  engaged  in  furthering 
a  public  end,  and  when  directed  solely  against  persons  and  prop- 
erty associated  with  governments  sought  to  be  overthrown.     It 

1  25  Fed.  408. 

2  Id.,  443.  Concerning  the  A7nbrose  Liaht,  see  Mr.  Bavard,  Secy,  of  State, 
to  Secv.  of  Navv,  July  14,  1885,  156  MS.  Dom.  Let.  691,  Moore,  Dig.,  II, 
1097  ;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Garland,  Atty.-Gen.,  July  15,  1885, 
156  MS.  Dom.  Let.,  263,  Moore,  Dig.,  II,  1099,  note;  Editorial  comment, 
Scott,  Cases,  350,  note. 

^Compare  the  attitude  of  Baron  Cotejipe,  Brazilian  Minister  of  Foreign 
Affairs,  in  communication  of  Jan.  12,  1877,  to  the  Spanish  Charge  d'Affaircs, 
regarding  the  steamer  Montezuma,  quoted  by  Calvo,  5  ed.,  I.  591  ;  also 
position  of  the  British,  French  and  German  governments,  respecting  certain 
Spanish  ships  taken  by  insurgents,  near  Cartagena  in  1873,  described  in 
Calvo,  5  ed.,  I.  583-588. 

415 


§  233]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

has,  moreover,  properly  declined  to  be  guided  in  its  decisions  by 
declarations  or  requests  emanating  from  such  governments.^ 

Whether  the  acts  of  unrecognized  insurgents,  directed  against 
the  ships  of  foreign  States,  are  to  be  deemed  piratical  should,  on 
principle,  depend  upon  the  magnitude  of  the  movement  and  also 
upon  the  relation  of  the  acts  to  the  struggle  for  the  reins  of  govern- 
ment. If  the  acts  are  incidental  to  the  contest,  and  consist 
merely  in  the  attempt  to  prevent  an  outside  State  or  its  nationals 
from  rendering  aid  to  the  de  jure  government  opposed,  and  in  a 
struggle  of  such  magnitude  as  would  justify  the  recognition  of  the 
insurgents  as  such  by  a  foreign  power,  it  is  not  believed  that  they 
should  be  treated  as  piratical.^ 

It  must  be  clear  that  vessels  belonging  to  the  nationals  of  a 
foreign  State,  and  which  have  been  seized  by  unrecognized  in- 
surgents, may  be  lawfully  retaken  upon  the  high  seas  by  the 
public  ships  of  that  State.^  This  right  is  not,  however,  based 
upon  the  theory  that  the  original  taking  was  essentially  piratical, 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Bassett,  Minister  to  Haiti.  Sept.  14, 
1869,  MS.  Inst.  Haiti,  I,  150,  Moore,  Dig.,  II,  1085;  Mr.  Frelinghuysen, 
Secy,  of  State,  to  Mr.  Langston,  Minister  to  Haiti,  Dec.  15,  1883,  For.  Rel. 
1884,  297,  Moore,  Dig.,  II,  1087 ;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Becerra, 
Colombian  Minister,  April  24,  1885,  For.  Rel.  1885,  254,  Moore,  Dig.,  II,  1089 ; 
Same  to  Same,  June  15,  1885,  For.  Rel.  1885,  272,  273,  Moore,  Dig.,  II,  1094; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Whitney,  Secy,  of  Navy,  April  15,  1885, 
155  MS.  Dom.  Let.  101,  Moore,  Dig.,  II,  1096,  note. 

On  October  31,  1873,  The  Virginius,  a  vessel  belonging  to  the  Cuban  itisur- 
gents  and  employed  in  aiding  the  insurrection,  was  captured  by  the  Spanish 
cruiser  Tornado,  and  taken  to  Santiago  de  Cuba,  where  fifty-three  of  the  per- 
sons on  board,  American,  British  and  Cuban,  were  charged  with  piracy, 
tried  by  court-martial,  and  shot.  The  vessel  had  been  fraudulently  regis- 
tered in  the  United  States,  and  when  captured  was  displaying  the  American 
flag.  Both  the  United  States  and  Great  Britain  emphatically  denied  the 
right  of  Spain  to  treat  the  persons  found  on  board  The  Virginius  as  pirates. 
To  both  States  Spain  paid  substantial  indemnities  in  satisfaction  of  per- 
sonal claims,  for  distribution  among  the  families  of  persons  interested.  See 
Mr.  Fish,  Secy,  of  State,  to  Admiral  Polo  de  Bernabe,  April  18,  1874.  For.  Rel. 
1875,  II.  1178,  1182;  also  id.,  1250,  Moore,  Dig.,  II,  967-968,  and  documents 
there  cited  ;  also  Hall,  Higgins'  7  ed.,  p.  277,  citing  Pari.  Papers,  LXXVI,  1874. 

2  Compare  the  case  of  the  monitor  Huascar,  which  in  1877,  after  revolting 
from  the  public  service  of  Peru,  and  having  adhered  to  the  insurgent  move- 
ment, was  denounced  by  the  de  jure  government  as  a  piratical  vessel.  The 
Huascar,  while  on  the  high  seas,  took  coal  from  a  British  ship  without  agree- 
ing to  pay  therefor,  and  also  stopped  another  British  ship,  taking  therefrom 
two  persons  bound  for  the  public  service  of  the  Peruvian  government.  As 
these  acts  were  considered  piratical  by  the  Commander-in-Chief  of  the  British 
Naval  force  in  the  Pacific,  the  Huascar  was  attacked  and  partially  disabled 
by  a  British  cruiser.  Upon  the  subsequent  surrender  of  the  Huascar  to  the 
Peruvian  authorities,  that  Government  demanded  an  indemnity  of  Great 
Britain,  which  the  latter  refused  to  pay.  Hall,  Higgins'  7  ed.,  pp.  275-276, 
citing  Pari.  Papers,  Peru,  No.  1,  1877. 

3  Mr.  Fish,  Secv.  of  State,  to  Mr.  Bassett,  Minister  to  Haiti,  Sept.  14, 
1869,  MS.  Inst.  Haiti.  1, 150,  Moore,  Dig.,  II,  1085  ;  Mr.  Bavard,  Secy,  of  State, 
to  Mr.  Scruggs,  Minister  to  Colombia,  May  19,  1885,  For.  Rel.  1885,  21i 
Moore,  Dig.,  II,  1087-1088. 

416 


REVENUE    OR   HOVERING   LAWS  [§  235 

but  rather  on  the  ground  that  as  the  seizure  was  wTongful  the 
rescue  from  the  seizor  is  at  least  justifiable.^  From  this  right  of 
recapture  there  does  not  appear  to  be  derived  a  right  to  regard 
the  original  seizure  as  piratical.^  Whether  that  act  is  of  such 
a  character  should  be  ascertained  by  reference  to  the  general 
principles  applicable  to  any  case.^ 

(d) 
§  234.   Acts  of  Privateers. 

At  the  time  when  privateering  flourished,  the  courts  of  the 
United  States  declared  that,  according  to  the  law  of  nations,  the 
duly  commissioned  privateer,  like  the  public  armed  vessel,  was 
not  to  be  regarded  as  piratical.^  Furthermore,  the  political 
department  of  the  Government  asserted  that  privateering  was 
not  to  be  deemed  to  partake  of  the  offense  of  piracy  because  of 
the  circumstance  that  the  commander  and  a  majority  of  the  crew 
of  a  privateer  might  not  be  nationals  of  the  State  issuing  the  com- 
mission.'' The  action,  however,  of  Mexico  in  1847,  in  issuing 
blank  commissions  for  the  use  of  privateers,  and  for  indiscriminate 
sale  by  minor  agents  in  Europe,  who  were  empowered  to  insert 
the  names  of  persons  commissioned,  was  regarded  by  the  United 
States  as  action  conferring  no  authority  entitled  to  respect.^ 

(5) 

§  235.   Revenue  or  Hovering  Laws. 

Great  Britain  in  1736,  and  the  United  States  in  1799,  by  means 
of  revenue  or  so-called  hovering  laws,  appeared  to  assert  a  right 

*  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Whitney,  Secy,  of  Navy,  April  15, 
1885,  155  MS.  Dom.  Let.  101,  Moore,  Dig.,  II,  1089,  note. 

^  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Becerra,  Colombian  Minister,  April 
24,  1885,  For.  Rel.  1885,  254,  Moore,  Dig.,  II,  1089-1090. 

^  It  must  be  obvious  that  insurgents  may  commit  acts  of  piracy.  Declared 
Dr.  Lushington  in  the  case  of  the  Magellan  pirates,  "It  does  not  follow  that 
rebels  or  insurgents  may  not  commit  piratical  acts  against  the  subjects  of  other 
states,  especially  if  such  acts  were  in  no  degree  connected  with  the  insurrec- 
tion or  rebellion."     1  Spinks,  Eccl.  &  Adm.  Rep.  81,  83. 

■*  The  Neustra  Senora  de  la  Caridad,  4  Wheat.  497 ;  The  Santissima 
Trinidad,  7  Wheat.  283  ;  Ford  v.  Surget,  97  U.  S.  594,  618-G20 ;  Dale  v.  Mer- 
chants' Mutual  Marine  Ins.  Co.,  6  Allen,  373  ;  Dale  v.  New  England  Mutual 
Marine  Ins.  Co.,  2  ChfT.  394 ;   Fifield  v.  Ins.  Co.  of  Pcnn.,  47  Pa.  St.  1G6. 

See,  also,  memorandum  of  Mr.  Buchanan,  Minister  at  London,  March  16, 
1854,  Geo.  Ticknor  Curtis,  Life  of  James  Buchanan,  New  York,  1883,  II, 
128,  quoted  in  Moore,  Dig.,  II,  976. 

*  Mr.  Adams,  Secv.  of  State,  to  The  Chev.  Onis,  Spanish  Minister,  April 
7,  1819,  MS.  Notes  to  For.  Leg.  II,  355,  Moore,  Dig.,  II,  974. 

«  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Saunders,  June  13,  1847,  MS.  Inst. 
Spain,  XIV,  224,  Moore,  Dig.,  II,  972. 

VOL.  I —  14  -117 


§  235]         RIGHTS  AND  DUTIES  OF  JURISDICTION 

of  jurisdiction  with  respect  to  certain  acts  committed  on  the  high 
seas  adjacent  to  their  territorial  waters  and  within  four  leagues  of 
their  coasts.^  The  Act  of  Congress  imposed  a  penalty  upon  the 
master  of  any  vessel  bound  to  a  port  within  the  United  States  who 
should,  within  that  distance  of  the  coasts  thereof,  not  produce  the 
requisite  manifests  of  the  cargo  to  be  discharged  within  the  United 
States,  or  fail  to  certify  the  same,  and  also  in  case  of  the  unlading 
of  the  cargo  before  the  ship  should  come  to  the  proper  place  for 
the  discharge  of  the  same  without  authority,  except  in  case  of 
necessity.^  The  same  act  directed  revenue  officers  to  board  all 
vessels  which  should  arrive  within  the  United  States  or  within 
four  leagues  of  the  coasts  thereof,  if  bound  for  the  United  States, 
and  search  and  examine  the  same,  demand,  receive  and  certify 
the  requisite  manifests,  affix  proper  seals,  and  remain  on  board 
until  the  vessels  should  arrive  at  their  destination.^  It  is  thus 
apparent  that  while  the  design  of  the  statute  was  to  prevent  the 
commission  of  acts  witliin  the  limits  of  the  United  States  in  viola- 
tion of  its  revenue  laws,  the  scheme  of  prevention  contemplated 
the  punishment  of  individuals  on  account  of  acts  committed  on 
the  high  seas,  at  least  in  case  the  ship  concerned  came  into  Ameri- 
can waters.'* 

Notwithstanding  conflicting  opinions  within  a  small  group  of 
cases,  it  is  not  to  be  concluded  that  the  Supreme  Court  of  the 
United  States  denounced  such  conduct  as  at  variance  with  the 
requirements  of  international  law.^ 

1  The  British  Act  of  1736,  was  that  of  9  Geo.  II,  Chap.  35.  See,  especially, 
Sections  XVIII  and  XXIII. 

The  Act  of  Congress  is  Chap  22,  March  2,  1799,  to  regulate  the  collection 
of  duties  on  imports  and  tonnage,  1  Stat.  627,  647-648,  700.  The  date  of 
this  Act  is  sometimes  inadvertently  stated  tc  be  March  2,  1797. 

C.f.  Marginal  Seas,  supra,  §  144. 

2  Act  of  March  2,  1799,  Section  26,  Rev.  Stat.  §  2814,  U.  S.  Comp.  Stat. 
1918,  §  5511;  also  Section  27,  Rev.  Stat.  §  2867,  U.  S.  Comp.  Stat.  1918, 
s  5555. 

3  Act  of  March  2,  1799,  Section  99,  Rev.  Stat.  §  2760,  U.  S.  Comp.  Stat. 
1918,  §  84591 b  (52) 

See,  also,  Dana's  Wheaton,  Dana's  Note  No.  108. 

^  "AH  these  offences,  and  all  ©ffences  of  the  same  class  and  character  re- 
latmg  to  revenue  and  to  trade,  are  measures  directed  against  a  breach  of  the 
law  contemplated  to  be  consummated  within  the  territory,  to  the  prevention 
of  an  offence  against  the  municipal  law  within  the  area  to  which  the  mu- 
nicipal law  properly  extends."  Sir  Charles  Russell,  oral  argument,  Fur  Seal 
Arbitration,  Proceedings,  XIII,  1076. 

5  Chief  .lustice  Marshall,  in  the  case  of  Church  v.  Hubbart,  2  Cranch,  187, 
234,  in  1804  declared  it  to  be  the  right  of  a  State  to  seize  vessels  hovering 
upon  its  coasts  and  about  to  enter  therein  for  the  purpose  of  violating  its 
revenue  laws.  "The  result  of  the  decision  is,"  according  to  Mr.  Dana,  "that 
the  Court  did  not  undertake  to  pronounce  judicially,  in  a  suit  on  a  private  con- 
tract, that  a  seizure  of  an  American  vessel,  made  at  four  leagues,  by  a  foreign 
power,  was  void  and  a  mere  trespass."     Dana's  Wheaton,  Dana's  Note  No. 

418 


REVENUE    OR   HOVERING   LAWS  [§  235 

In  his  oral  argument  before  the  Paris  Tribunal,  in  the  Fur 
Seal  Arbitration,  in  1893,  Mr.  Edward  J.  Phelps,  in  behalf  of  the 
United  States,  summarized  the  practice  of  his  own  country  and 
Great  Britain.  He  justified  the  position  of  both  on  the  ground 
of  self-defense,  or,  more  broadly,  of  self-preservation.^  Sir  Charles 
Russell  (then  Attorney-General,  subsequently  Lord  Chief  Justice 
of  England)  asserted,  on  the  other  hand,  that  hovering  laws  rested 
upon  the  principle  that 

no  civilized  State  will  encourage  offences  against  the  laws  of 
another  State,  the  justice  of  which  laws  it  recognizes.     It  will- 

108.     In  1808,  in  the  case  of  Rose  v.  Himely,  4  Cranch,  241,  279,  the  learned 
Chief  Justice  expressed  the  view  that  the  seizure  of  a  foreign  vessel  on  the 
high  seas  for  the  breach  of  a  municipal  regulation  was  an  act  "which  the 
sovereign  cannot  authorize."     Justices  Livingston,  Gushing  and  Chase,  with- 
out expressing  an  opinion  on  the  validity  of  a  seizure  on  the  high  seas  under 
a  municipal  regulation,  if  the  property  captured  should  be  immediately  taken 
into  a  port  of  the  captor's  country,  concurred  in  denying  the  validity  of  the 
condemnation  of  the  vessel  because  she  was  condemned  while  lying  in  a  foreign 
port.     Id.,  281.     Johnson,  J.,  was  of  opinion  that  the  capture  was  legal.     Id., 
281 ;   and  Todd,  J.,  subsequently  stated  that  he  had  concurred  in  that  view. 
See  Hudson  v.  Guestier,  6  Cranch,  285,  note.     In  the  case  of  Hudson  v.  Gues- 
tier,  4  Cranch,  293,  in  an  agreed  statement  of  facts,  it  appeared  that  the  cap- 
ture was  effected  within  territorial  waters,  hence  the  right  to  capture  on  the 
high  seas  was  not  considered.     The  judgment  for  the  plaintiffs  having  been 
set  aside,  however,  the  case  was  remanded  for  a  new  trial,  and,  as  a  result,  the 
defendant  secured  a  verdict  and  judgment.     The  plaintiffs,  thereupon,  by 
writ  of  error,  appealed  to  the  Supreme  Court,  alleging  as  error  an  instruc- 
tion to  the  effect  that  the  capture  was  legal,  "although  such  capture  was 
made  at  a  distance  of  six  leagues  from  the  said  island  of  St.  Domingo,  or  St. 
Heneague,  its  dependency,  and  beyond  the  territorial  limits  or  jurisdiction  of 
said  island."     Hudson  v.  Guestier,  6  Cranch,  281,  282.     The  Supreme  Court, 
in  affirming  the  judgment  below,  held  that  the  allegation  as  to  jurisdiction, 
"if  it  had  been  essential  ",  might,  for  all  that  appeared,  have  been  urged  be- 
fore the  French  court  of  condemnation,  and  decided  by  it  in  the  negative; 
and  that  as  that  court  had  a  right  to  dispose  of  every  question  raised  in  be- 
half of  the  owners  of  the  property,  relating  to  jurisdiction  as  well  as  to  any 
other  problem,  the  judgment  thereon  was  not  subject  to  review.     Mr.  Justice 
Livingston  said,  however,  in  the  course  of  the  opinion,  "If  the  res  can  be  pro- 
ceeded against  when  not  in  the  possession  or  under  the  control  of  the  court, 
I  am  not  able  to  perceive  how  it  can  be  material  whether  the  capture  were 
made  within  or  beyond  the  jurisdictional  limits  of  France;    or  in  the  exer- 
cise of  a  l)elligerent  or  municipal  right.     By  a  seizure  on  the  high  seas,  she  inter- 
fered with  the  jurisdiction  of  no  other  nation,  the  authority  of  each  being 
there  concurrent."    Id.,  284.     Chief  Justic?  Marshall,  who  alone  dis.sented, 
observed  that  "he  had  suppo.sed  that  the  former  opinion  delivered  in  this 
case  upon  the  point  had  been  concurred  in  by  four  judges.     But  in  this  he  was 
mistaken";    and  that  the  principle  of  Rose  v.  Himely  "is  now  overruled." 
Id.,  285.     The  chief  ground  of  disagreement  in  the  foregoing  cases  concerned 
the  right  of  a  court  to  condemn  a  vessel  when  lying  within  a  foreign  port  and 
hence  outside  of  the  control  of  the  tribunal,  rather  than  the  right  of  a  State  to 
seize  a  vessel  for  anv  purpose  outside  of  its  own  territorial  waters. 

See,  also,  Story,  J.,  in  The  ApoUon,  9  Wheat.  362,  371;  Blatchford,  J.,  in 
Manchester  v.  Massachusetts,  139  U.  S.,  240,  258;  Memorandum  by  Mr. 
L.  H.  Woolsey  of  the  Solicitor's  office,  Dept.  of  State,  Dec.  28,  1910,  on  mu- 
nicipal seizures  beyond  the  three-mile  limit.  For.  Rel.  1912,  1289. 

'  Fur  Seal  Arbitration,  Proceedings,  XV,  128-135. 

419 


§  235]  RIGHTS   AND   DUTIES   OF  JURISDICTION 

ingly  allows  a  foreign  State  to  take  reasonable  measures  of  pre- 
vention within  a  moderate  distance  even  outside  territorial 
waters.^ 

He  denied,  however,  that  such  acts  would  in  all  cases  meet 
with  assent,  particularly  if  the  attempt  were  made  to  enforce  them 
at  a  considerable  distance  from  land  or  that  in  such  case  they 
could  be  asserted  as  of  right  as  against  an  objecting  State.  In 
admitting  the  acquiescence  of  States  in  the  exercise  of  such  juris- 
diction, however  limited  in  scope,  the  learned  advocate  estab- 
lished the  best  possible  foundation  for  the  existence  of  the  right 
under  international  law.^  These  statements  are  believed  to- 
gether to  furnish  significant  evidence  of  the  fact  that  the  exercise 
of  jurisdiction  for  revenue  purposes,  within  a  close  proximity 
to  territorial  waters,  is  not  to  be  regarded  as  internationally  wrong- 
ful.3 

(6) 
§  236.    Hot  Pursuit. 

When  a  foreign  vessel,  after  having  violated  the  municipal 
laws  of  a  State,  within  its  territorial  w^aters,  puts  to  sea  to  avoid 
detention,  conditions  justifying  immediate  pursuit  and  capture 
on  the  high  seas  on  grounds  of  self-defense,  are,  as  has  been  al- 
ready observed,  rarely  if  ever  present."*  Nevertheless,  it  may  be 
necessary,  as  Westlake  has  pointed  out,  "for  the  effective 
administration  of  justice",  that  a  State  should  be  permitted  to 
pursue  and  capture  such  a  vessel  on  the  high  seas,  and  bring  it 

1  Fur  Seal  Arbitration,  Proceedings,  XIII,  1076  and  1079. 

^  Declares  Westlake  in  commenting  upon  a  similar  admission  by  Sir  Charles 
Russell  in  the  course  of  the  same  argument:  "In our  sense  of  that  word  there 
can  be  no  such  thing  as  international  law,  if  it  does  not  exist  in  a  case  in  which 
a  general  consent  to  it  on  the  part  of  nations  is  admitted."  Int.  Law,  2  ed., 
1,  177. 

3  Blatchford,  J.,  in  Manchester  v.  Mass.,  139  U.  S.  240,  258;  Oral  argument 
of  Mr.  Edward  J.  Phelps,  Fur  Seal  Arbitration,  Proceedings,  XV,  128-135. 

Said  Mr.  Fish,  Secy,  of  State,  in  a  communication  to  Sir  E.  Thornton,  Brit- 
ish Minister,  Jan.  22,  1875:  "It  is  believed,  however,  that  in  carrying  into 
effect  the  authority  conferred  by  the  Act  of  Congress  referred  to,  no  vessel 
i?  boarded,  if  boarded  at  all,  except  such  a  one  as,  upon  being  hailed,  may  have 
answered  that  she  was  bound  to  a  port  of  the  United  States.  At  all  events, 
although  the  Act  of  Congress  was  passed  in  the  infancy  of  this  Government, 
there  is  no  known  instance  of  any  complaint  on  the  part  of  a  foreign  Govern- 
ment of  the  trespass  by  a  commander  of  a  revenue  cutter  upon  the  rights  of  its 
flag  under  the  law  of  nations."  For.  Rel.  1875,  I,  649-650,  Moore,  Dig.,  I, 
731. 

See,  also.  Sir  W.  Scott  in  Le  Louis,  2  Dodson,  210,  245-246 ;  Cockburn,  C.  J., 
in  Reg.  v.  Kevn,  2  Exch.  Div.  63,  216.  Compare  Mr.  Evarts,  Secv.  of  State, 
to  Mr.  Foster;  April  19,  1879,  MS.  Inst.  Mexico,  XIX,  570,  Moore,  Dig.,  I,  731. 
See  editorial  comment  on  the  case  of  the  Tatsu  Maru,  Am.  J,,  II,  391. 

"  Supra,  §  68. 

420 


IMPRESSMENT  [§  237 

back  to  the  national  domain  for  judicial  prosecution.^  This  is 
obviously  true  if  the  pursuit  be  commenced  before  the  ship  has 
actually  escaped  from  the  territorial  waters,  and  is  continued 
without  interruption  until  the  vessel  is  overtaken  and  seized.^ 

Enlightened  powers  are  reluctant  to  attempt  to  shield  their 
own  vessels  from  the  just  and  natural  consequences  of  illegal 
acts  committed  within  the  territorial  waters  of  friendly  States. 
Hence  the  practice  to  which  Sir  Charles  Russell,  in  his  argument 
in  the  Fur  Seal  Arbitration,  bore  striking  testimony,  reveals 
acquiescence  on  the  part  of  maritime  States  in  the  hot  pursuit 
and  arrest  on  the  high  seas  of  a  delinquent  and  fugitive 
vessel  by  the  public  ship  of  the  territorial  sovereign  whose  mu- 
nicipal laws  have  been  violated.  This  acquiescence  affords  solid 
proof,  therefore,  that  such  action  is  not  internationally  illegal.^ 

(7) 
§  237.   Impressment. 

A  State  lacks  the  right  to  impress  into  its  public  service  a  per- 
son, whether  a  national  or  a  former  national,  found  on  board  of 
a  foreign  vessel  on  the  high  seas.'*    Although  his  presence  there 

1  Int.  L.,  2  ed.,  I,  177.     See,  also,  Woolsey,  6  ed.,  71. 

-  "One  condition  is  it  must  be  a  hot  pursuit  —  that  is  to  say,  a  nation  can- 
not lie  by  for  days  or  weeks  and  then  say:  'You,  weeks  ago,  committed  an 
offence  within  the  waters,  we  will  follow  you  for  miles,  or  hundreds  of  miles, 
and  pursue  you.'  As  to  that,  it  must  be  a  hot  pursuit,  it  must  be  inunediate 
and  it  must  be  within  limits  of  moderation."  Sir  Charles  Russell,  oral  argu- 
ment, Fur  Seal  Arbitration,  Proceedings,  XIII,  1079. 

According  to  Art.  VIII  of  the  Rules  on  the  Definition  and  Regime  of  the 
Territorial  Sea,  adopted  by  the  Institute  of  International  Law  in  1894 :  "The 
littoral  State  has  the  right  to  continue  on  the  high  seas  a  pursuit  commenced 
in  the  territorial  sea,  and  to  seize  and  pass  judgment  on  the  ship  which  has 
committed  a  breach  of  law  within  its  waters.  In  case,  however,  of  capture  on 
the  high  sea,  the  fact  shall  be  notified  without  delay  to  the  State  whose  flag 
the  ship  flies.  The  pursuit  must  be  interrupted  as  soon  as  the  ship  enters  the 
territorial  sea  of  its  own  country  or  of  a  third  Power.  The  right  to  pursue 
ceases  as  soon  as  the  ship  has  entered  a  port  of  its  own  country  or  of  a  third 
Power."     Annuaire,  XIII,  330,  J.  B.  Scott,  Resolutions,  115. 

^  Fur  Seal  Arbitration,  Proceedings,  XIII,  1079. 

Denying  such  a  right,  see  Award  of  Mr.  Asser,  Arbitrator  in  the  cases  of 
the  James  Hamilton  Lewis,  and  the  C.  H.  White  under  Convention  between 
the  United  States  and  Russia,  Aug.  26-Sept.  8,  1900,  For.  Rel.  1902,  Ap- 
pendix, I,  454,  456.  and  459,  462. 

Concerning  the  case  of  the  Itata,  a  vessel  in  the  service  of  the  Chilean  Con- 
gressional Party,  and  which  in  1891,  after  having  escaped  from  the  United 
States,  and  having  eluded  pursuit  on  the  high  seas,  was  surrendered,  together 
with  her  cargo,  to  an  American  naval  commander  within  Chilean  waters, 
see  Moore,  Arbitrations,  III,  3067-3071;  Moore,  Dig.,  II,  985-986,  and 
documents  there  cited. 

^  "  Great  Britain  at  one  time  claimed  the  right  to  impress  into  her  navy 
British  seamen  found  on  board  the  vessels  of  other  nations  on  the  high  seas. 
This  claim  was  asserted,  not  as  a  peace-right,  nor  yet  as  an  independent  war- 
right,  but  as  an  incident  of  the  admitted  belligerent  right  of  visit  and  search. 

421 


§237]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

may  indicate  disobedience  to  a  command  forbidding  a  change 
of  nationality,  or  prohibiting  foreign  service  not  specially  author- 
ized, neither  circumstance  appears,  according  to  American  opinion, 
to  justify  the  assertion  of  control  or  jurisdiction  over  the  individual 
or  the  ship.  That  right  is  necessarily  the  exclusive  possession 
of  the  State  to  which  the  vessel  belongs.  For  the  ship's  pro- 
tection rather  than  that  of  a  particular  occupant,  the  law  of 
nations  denies  the  privilege  to  any  other  power.^ 

e 

Extraterritorial  Crime 

(1) 

§  238.  Offenses  Committed  Outside  of  the  State  and  Tak- 
ing Effect  Therein. 
The  setting  in  motion  outside  of  a  State  of  a  force  which  pro- 
duces as  a  direct  consequence  an  injurious  effect  therein,  justifies 
the  territorial  sovereign  in  prosecuting  the  actor  when  he  enters 
its  domain.-  Instances  of  the  recognition  of  this  principle  in 
American  cases  are  numerous  and  varied.^  It  has  been  observed, 
however,  that  in  both  England  and  America,  the  courts  have  not 
assumed  jurisdiction 

even  under  Statutes  couched  in  the  most  general  language, 
to  try  and  sentence  a  foreigner  for  acts  done  by  him  abroad, 
unless  they  were  brought,  either  by  an  immediate  effect  or  by 

.  .  .  The  claim  of  impressment  seems  at  the  present  day  to  possess,  however, 
even  if  it  has  never  been  formally  renounced,  only  an  historic  interest  as  a 
phase  of  the  struggle  for  the  establishment  of  the  principle  of  the  freedom  of 
the  seas.  This  great  principle,  Great  Britain  now  fully  recognizes  and  main- 
tains; she  also  permits  the  expatriation  of  her  subjects,  and  acknowledges 
the  qualified  nationality  derived  by  seamen  from  their  services;  and,  in  the 
case  of  Mason  and  Slidell,  she  impliedly  affirmed  that  the  taking  of  persons 
from  a  neutral  vessel,  under  cover  of  the  belligerent  right  of  visit  and  search, 
could  not  be  justified  by  a  claim  to  their  allegiance."     Moore,  Dig.,  II,  987. 

See,  also,  Mr.  Marshall,  Sec.y.  of  State,  to  Mr.  King,  Minister  to  England, 
Sept.  20,  1800,  Am.  State  Pap.",  For.  Rel.  II,  486,  489,  Moore,  Dig.,  Ii;  989; 
Moore,  Dig.,  II,  987-1001  and  documents  there  cited;  Woolsev,  6  ed.,  384- 
386. 

^  Indirect  Unneutral  Service,  Persons  Subject  to  Interception,  The  Trent 
Case,  infra,  §§  818. 

2  The  analysis  and  treatment  of  this  problem  are  based  upon  Mr.  Moore's 
masterly  Report  on  Extraterritorial  Crime,  contained  in  For.  Rel.  1887, 
757. 

^  See,  for  example.  United  States  v.  Davis,  2  Sumner,  482 ;  Commonwealth 
V.  White,  123  Mass.  430;  State  v.  Hall,  114  N.  Car.  909;  Simpson  v.  State, 
92  Ga.  41. 

422 


OFFENSES  COMMITTED  ON  VESSELS  OF  THE  STATE     [§  239 

direct  and  continuous  causal  relationship,  within  the  territorial 
jurisdiction  of  the  court. ^ 

In  1910,  the  Department  of  State  declared  that  "inasmuch  as, 
under  Anglo-Saxon  legal  theory,  crime  is  territorial,  not  personal, 
and  therefore  the  criminal  jurisdiction  of  the  United  States  does 
not,  as  a  general  rule,  extend  to  crimes  committed  outside  of  its 
jurisdiction,  whether  by  American  citizens  or  aliens",  it  was  not 
possible  to  meet  the  suggestion  of  a  German  note  verbale  that 
there  be  any  American  guarantee  of  the  criminal  prosecution  in 
the  United  States  of  an  American  citizen  charged  with  the  com- 
mission of  a  crime  in  Germany.^ 


(2) 

§  239.    Offenses  Committed  on  Vessels  of  the  State. 

A  State  has  the  right  to  make  reasonable  application  of  its 
criminal  code  to  its  owm  vessels  (private  or  public)  when  they  are 
on  the  high  seas,  and,  therefore,  to  punish  the  occupants  who 
violate  it.^  The  relation  of  the  State  to  the  vessel  when  so  cir- 
cumstanced justifies  the  assertion  of  jurisdiction.^  It  has  been 
observed,  however,  that  when  a  merchant  vessel  (as  distinct 
from  a  public  ship)  enters  a  foreign  port,  it  is  not  exempt  from 
the  local  jurisdiction,  and  that  one  who,  while  on  board,  commits 
a  criminal  act  is  ordinarily  amenable  to  local  process.^  Neverthe- 
less, the  State  to  which  the  vessel  belongs  may  also  punish  the 
offender,  especially  if  he  be  an  officer  or  member  of  the  crew%  in 
case  the  territorial  sovereign  of  the  port  may  not  have  exercised 

1  Report  on  Extraterritorial  Crime,  For.  Rel.  1887,  778,  Moore,  Dig.,  II, 
255. 

•■^  Mr.  Wilson  (for  Mr.  Knox,  Secy,  of  State)  to  Mr.  Hill,  Ambassador  to 
Germany,  Jan.  11,  1910,  For.  Rel.' 1910,  518.  See,  also,  United  States  v. 
Nord  Deutscher  Lloyd,  223  U.  S.  512,  517-518,  where  Mr.  Justice  Lamar  de- 
clared:  "The  statute,  of  course,  has  no  extra-territorial  operation,  and  the 
defendant  cannot  be  indicted  here  for  what  he  did  in  a  foreign  country. 
American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347." 

3  President  Adams  to  Mr.  Pickering,  Secy,  of  State,  Mav  21,  1799,  Joha 
Adams'  Works,  VIII,  651,  Moore,  Dig.,  I,  930;  Mr.  Fish,  Secy,  of  State,  to 
Gen.  Schenck  Minister  to  England,  Nov.  8,  1873,  MS.  Inst.  Gr.  Br.,  XXIII, 
431,  Moore,  Dig.,  I,  931:  Mr.  Blaine,  Secv.  of  State,  to  Mr.  Ryan,  Minister 
to  Mexico,  Nov.  27.  1889,  For.  Rel.  1889,  614,  Moore,  Dig.,  I,  931;  Opinion 
of  Mr.  Gushing,  Atty.-Gen.,  Sept.  6,  1856,  8  Ops.  Attys.-Gen.,  73 ;  Mr.  Evarts, 
Secy,  of  State,  to  Mr.  Welsh,  Minister  to  England,  No.  328,  July  11,  1879, 
For.  Rel.  1879,  435,  Moore,  Dig.,  I,  932. 

*  Crapo  V.  Kelly,  16  Wall.  610,  624;    Wilson  v.  McNamee,  102  U.  S.  572. 

5  Rights  of  Jurisdiction,  Ports  and  Bays ;  Foreign  Merchant  Vessels,  Appli- 
cation  of  the  Local  Law,  supra,  §  221. 

423 


§  239]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

jurisdiction,  and  the  offender  enter  the  domain  of  the  former.^ 
This  concurrent  right  of  that  State  is  based  on  the  theory  that  its 
connection  with  the  ship  suffices  to  justify  the  punishment  of  persons 
officially  attached  to  it  who  disobey  the  commands  of  the  sovereign 
wherever  the  vessel  may  be,  and  regardless  of  the  legal  quality 
which  acts  of  disobedience  may  attain  in  the  place  where  they 
are  committed.^ 

It  will  be  found  that  the  exemption  of  a  foreign  public  ship 
and  its  occupants  from  the  local  jurisdiction  of  the  territorial 
sovereign  is  due  to  its  consent.^ 

(3) 
§  240.    Offenses  Committed  by  Nationals  of  the  State. 

It  is  generally  agreed  that  a  State  may  punish  its  own  nationals 
for  disobeying  its  commands  while  within  a  foreign  country, 
notwithstanding  the  legal  quality  which  the  territorial  sovereign 
may  have  annexed  to  the  acts  of  disobedience.  The  unwilling- 
ness of  the  former  to  respect  and  yield  to  the  law  of  the  latter  is 
a  matter  with  which  no  foreign  power  has  the  right  to  interfere.* 
It  is  to  be  observed,  however,  that  in  practice  the  nationals  of  a 
State  are  rarely  called  upon  to  observe  the  general  provisions 
of  its  criminal  code  when  they  are  within  the  territory  of  a  foreign 
country.^     If  a  State  sees  fit,  for  reasons  of  public  policy,  to  pro- 

1  Mr.  Webster,  Secy,  of  State,  to  Lord  Ashburton,  British  Minister,  Aug. 
1,  1842,  Webster's  Works,  VI,  306,  307,  cited  in  United  States  v.  Rodgers, 
150  U.  S.  249,  264,  INIoore,  Dig.,  I,  936;  Reg.  v.  Anderson  (1868),  11  Cox  C. 
C.  198. 

2  Nor  would  there  seem  to  be  any  reason  why  the  State  to  which  the 
vessel  belongs  should  be  deterred  from  punishing  a  passenger,  as  distinct  from 
a  member  of  the  crew,  under  the  circumstances  stated  in  the  text,  if  he  were 
guilty  of  conduct  normally  rendered  criminal  by  the  laws  of  enlightened  States 
and  by  those  of  the  country  within  whose  territory  he  committed  an  offense, 
as  well  as  by  those  of  the  prosecuting  State. 

3  Exemptions  from  Jurisdiction,  Foreign  Vessels  of  War,  infra,  §§  251-253. 

*  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Connery,  Charge  at  Mexico,  Nov.  1, 
1887,  For.  Rel.  1887,  751,  754,  Moore,  Dig.,  I,  933. 

^  "The  subject  has  presented  to  publicists  and  legislators  so  many  grave 
doubts  on  the  score  of  expediency  and  justice,  that  few  countries  have  at- 
tempted to  require  of  their  citizens  a  general  observance  of  their  criminal 
law  outside  of  the  national  territory,  except  in  particular  places.  These 
exceptions  are  barbarous  lands,  in  which  local  law  does  not  exist,  and  to  which 
the  doctrine  of  the  sovereignty  of  each  nation  over  all  persons  within  its 
territory  does  not  completely  apply;  and  Mohammedan  and  other  non- 
Christian  countries,  in  which  the  citizens  of  many  states  enjoy  a  conven- 
tional immunity  from  the  local  law."  Report  on  Extraterritorial  Crime,  For. 
Rel.  1887,  779,  Moore,  Dig.,  II,  256. 

Declared  Mr.  Justice  Holmes  in  the  ca«e  of  American  Banana  Co.  v.  United 
Fruit  Co.,  213  U.  S.  347,  355-356:  "No  doubt  in  regions  subject  to  no 
sovereign,  like  the  high  seas,  or  to  no  law  that  civilized  countries  would  recog- 
nize as  adequate,  such  countries  may  treat  some  relations  between  their  citizens 

'  424 


IN  GENERAL  [§  241 

hibit  the  commission  by  its  nationals  of  particular  acts  (such  as, 
for  example,  the  remarriage  by  a  divorced  citizen  within  a  specified 
period  after  the  granting  of  a  decree  of  divorce)  anywhere  in  the 
world,  the  scope  of  the  prohibition  should  be  definitely  expressed. 
In  the  United  States  the  courts  are  reluctant  to  impute  to  the 
legislature  an  intention  to  give  extraterritorial  application  to  a 
penal  law  containing  no  express  provision  respecting  the  terri- 
torial scope  of  its  application.^ 

(4) 
Offenses  Cominitted  by  Foreigners  Outside  of  the  State 

§  241.   In  General. 

Justification   for  the   criminal   prosecution  of  a  foreigner    l)y 

reason  of  the  commission  and  consummation  of  an  act  outside  of 

the  prosecuting  State,  must,  on  principle,  be  due  to  the  consent 

of  his  own  country,  or  to  the  fact  that  the  law  of  nations  renders 

the  act,  by  reason  of  its  peculiar  nature,  internationally  illegal, 

or  because  it  is  directed  against  the  safety  of  the  State.^     A  State 

may,  by  treaty,  consent  that  its  nationals  found  engaged  in  the 

slave  trade  shall  be  prosecuted  by  another  contracting  party  .^    Such 

as  governed  by  their  own  law,  and  keep  to  some  extent  the  old  notion  of  personal 
sovereignty  alive.  See  The  Hamilton,  207  U.  S.  398,  403;  Hart  v.  Gumpach, 
L.  R.  4  P.  C.  439,  463,  464;  British  South  Africa  Co.  v.  Companhia  de 
Mozambique  [1893],  A.  C.  602.  They  go  further,  at  times,  and  declare  that 
they  will  punish  any  one,  subject  or  not,  who  shall  do  certain  things,  if  they 
can  catch  him,  as  in  the  case  of  pirates  on  the  high  seas.  In  cases  immedi- 
ately affecting  national  interests  they  may  go  further  still  and  may  make, 
and,  if  they  get  the  chance,  execute  similar  threats  as  to  acts  done  within 
another  recognized  jurisdiction." 

1  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18 ;  State  v.  Shattuck,  69  Vt.  403,  407 ; 
Commonwealth  v.  Lane,  113  Mass.  458.  Compare  Lanham  v.  Lanham,  136 
Wis.  360,  365-366.     See,  also,  Roth  v.  Roth,  104  Ills.  35,  44. 

See  State  v.  Fenn,  47  Washington,  561,  and  Commonwealth  v.  Lane,  113 
Mass.  458,  relative  to  statutes  expresslj'  forbidding  divorced  citizens  from 
contracting  marriages,  under  certain  circumstances,  outside  of,  as  well  as  within 
the  State. 

Declared  Mr.  Justice  Day  in  Sandberg  v.  McDonald,  248  U.  S.  185,  195 : 
"Legislation  is  presumptively  territorial,  and  confined  to  limits  over  which 
the  lawmaking  power  has  jurisdiction." 

2  Declared  Mr.  Justice  Story,  in  The  Apollon,  9  Wheat.,  362,  370:  "The 
laws  of  no  nation  can  justly  extend  beyond  its  own  territories,  except  so  far  as 
regards  its  own  citizens.  They  can  have  no  force  to  control  the  sovereignty 
or  rights  of  any  other  nation,  within  its  own  jurisdiction.  And  however  general 
and  comprehensive  the  phrases  used  in  municipal  laws  may  be,  they  must 
always  be  restricted  in  construction,  to  places  and  persons,  upon  whom  the 
legislature  have  authority  and  jurisdiction." 

5  See,  for  example,  treaty  between  the  LTnited  States  and  Great  Pritaiii  of 
April  7, 1862,  for  the  Suppression  of  the  African  Slave  Trade,  Mallov'h-  Trc."' '  -, 
I,  674. 

425 


§  241]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

an  agreement  affords,  however,  no  proof  of  general  acquiescence 
in  the  appHcation  of  a  local  criminal  code  to  the  acts  of  foreigners 
committed  abroad.  Nor  does  the  circumstance  that  the  com- 
mission of  the  offense  of  piracy  renders  the  actor,  regardless  of 
his  nationality,  amenable  to  prosecution  by  any  maritime  power,^ 
justify  the  inference  that  a  territorial  sovereign  enjoys  general 
authority  to  prosecute  aliens  entering  its  domain  on  account  of 
the  commission  of  other  acts  abroad. 

(b) 

§  242.    Offenses  against  the  Safety  of  the  State. 

The  statutory  law  of  many  States,  and  notably  of  continental 
Europe,  has  contemplated  the  prosecution  of  foreigners  charged 
with  the  commission,  while  abroad,  of  acts  directed  against  the 
safety  of  the  State ;  and  the  legislation  of  several  of  that  number 
assimilate  to  acts  of  such  character  those  embracing  the  counter- 
feiting of  seals  of  the  State,  as  well  as  various  forms  of  the  national 
moneys.^  Such  legislation  may  be  regarded  as  exceptional  in 
character.  Occasions  for  its  application  are  infrequent  and 
attributable  to  circumstances  indicative  of  a  great  public  need.^ 
Statutes  enacted  for  the  preservation  of  the  safety  of  a  State 
afford  slight  support  for  the  contention  that  it  may  normally 
apply  its  criminal  code  to  aliens  who  outside  of  places  subject  to 
its  control  commit  acts  of  which  it  disapproves. 

(c) 

§  243.    Offenses  against  Nationals  of  the  State.     Cutting's 
Case. 

The  attitude  of  the  United  States  in  Cutting's  case  is  enlighten- 
ing. On  June  18,  1886,  one  A.  T.  Cutting,  an  American  citizen, 
and  a  resident  of  Mexico,  published  in  Texas  a  card  commenting 
on  certain  proceedings  of  one  Emigdio  Medina,  a  Mexican  citizen 
with  whom  Cutting  had  had  a  controversy.     For  that  publica- 

1  Piracy,  In  General,  supra,  §  231. 

2  See  Report  on  Extraterritorial  Crime,  For.  Rel.  1887,  790-791. 

^  According  to  Art.  VIII  of  the  Resolutions  adopted  by  the  Institute  of 
International  Law,  Sept.  7,  1883,  with  respect  to  the  Conflict  of  Penal  Laws : 
"Every  State  has  the  right  to  render  punishable  acts  committed  even  outside 
of  its  territory  and  by  foreigners  in  violation  of  its  local  laws,  when  they  con- 
stitute an  attack  upon  the  social  existence  of  the  State  and  compromise  its 
safety,  and  when  they  are  not  forbidden  by  the  criminal  law  of  the  State  on 
whose  territory  they  have  been  committed." 

426 


OFFENSES  AGAINST  NATIONALS  OF  THE  STATE         [§  243 

tion  Cutting  was,  a  few  days  later,  arrested  and  imprisoned  in 
Mexico.     Proceedings  were  taken  under  Article  186  of  the  Mexican 
Penal  Code  providing  for  the  prosecution  of  a  foreigner  committing 
in  a  foreign  country  an  offense  against  a  .Mexican  citizen,  in  case  the 
breach  of  law  should  have  the  character  of  a  penal  offense  in  the 
country  where  it  was  committed  as  well  as  in  Mexico.^     The 
jurisdiction  was  sustained   by   the  courts  ot  that  country  and 
approved  by  its  Executive.     An  appellate  tribunal  released  Cutting 
by  reason  of  the  abandonment  of  the  complaint  by  the  aggrieved 
Mexican  citizen,  declaring  also  that  justice  had  been  satisfied 
by  the  enforcement  of  a  small  part  of  the  original  sentence.^     The 
United  States  denied  that,  according  to  the  principles  of  inter- 
national law,  an  American  citizen  could  be  justly  held  to  answer 
in  Mexico  for  an  offense  committed  in  the  United  States,  simply 
because  the  object  of  that  offense  happened  to  be  a  Mexican 
citizen.^     Mexico,  on  the  other  hand,  sought  to  sustain  its  action 
on  two  grounds :   first,  because  such  jurisdiction  was  believed  to 
be  justified  by  international  law  and  the  positive  legislation  of 
various  states^   and  secondly,  on  the  theory  that  as  such  a  claim 
was  made  in  the  legislation  of  IMexico,  the  question  became  one 
solely  for  the  decision  of  the  Mexican  courts.     In  response  to  the 
latter,  jVIr.  Bayard,  Secretary  of  State,  had  merely  to  advert  to 
the  principle  maintained  and  admitted  by  the  United  States, 
that  a  country  cannot  appeal  to  its  municipal  regulations  as  an 
answer  to  demands  for  the  fulfillment  of  international  duties. 
In  response  to  the  former,  he  declared  that  according  to  the 
principles    of    international    law    the    penal    laws    of    a    State, 
save  with  respect  to  nationals  thereof,  had  no  extraterritorial 
force ;    and  that  the  existing  legislation  of  States  indicated  no 
general  acquiescence  in  the  assertion  expressed  in  the  Mexican 
code.^    The  Secretary  protested  also  against  the  claim  of  a  right 
on  the  part  of  a  Mexican  tribunal  to  pass  upon  the  question 
whether  an  American  citizen  had  in  fact  committed  in  Texas  the 

1  Concerning  Cutting's  case  see  For.  Rel.  1886,  691-708;  id.  1887,  751- 
849  (which  contains  the  Report  on  Extraterritorial  Crime,  by  Mr.  Moore, 
Third  Assist.  Secy,  of  State,  757-840) ;  documents  in  Moore,  Dig.,  II,  228- 
242;  also  A.  Rolin,  "U Affaire  Cutting'',  Rev.  Droit  Int.,  1  ser.,  XX,  559; 
J.  M.  Gamboa,  " L' Affaire  Cutting  ",  id.,  1  ser.,  XXII,  234,  both  cited  in  Moore, 
Dig.,  II.  269.     See,  also,  Woolsey.  6  ed.,  109-111 ;  Westlake,  2  ed.,  I,  262-263. 

=*  President  Cleveland,  Annual  Message,  Dec.  6,  1886,  For.  Rel.  1886,  viii, 
Moore,  Dig.  231. 

^  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Connery,  Charg^  d'Affaires  to  Mexico, 
Nov.  1,  1887,  For.  Rel.  1887,  751,  Moore,  Dig.,  II,  232. 

*  Id.  Proof  of  this  fact  was  furnished  by  the  data  contained  in  Mr.  Moore's 
Report  on  Extraterritorial  Crime,  enclosed  in  Mr.  Bayard's  note. 

427 


§  243]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

offense  of  libel  against  its  laws,  when,  according  to  the  code  of 
that  State,  no  person  could  be  convicted  of  such  an  offense  except 
as  a  result  of  indictment  and  trial  by  jury.^  The  urgent  representa- 
tions of  the  United  States  to  secure  a  modification  by  Mexico 
of  its  unusual  claim  apparently  failed  to  receive  favorable  con- 
sideration.^ It  is  believed  that  the  position  taken  by  the  United 
States  was  sound. 

f 
Exemptions  from  Territorial  Jurisdiction 

(1) 
§  244.   In  General. 

A  foreigner  is  exempt  from  the  jurisdiction  of  the  State  which 
he  has  entered  when  the  lawfulness  of  his  acts  and  the  conse- 
quences resulting  from  their  commission,  as  well  as  the  process 
to  which  he  is  amenable,  are  left  to  the  determination  of  an  out- 
side power,  such  as  his  own  country.  It  is  always  by  virtue 
of  the  consent  of  the  territorial  sovereign  that  the  exemption 
arises.^  Such  consent  may  be  derived  from  a  treaty  willingly 
concluded  by  friendly  powers.  It  may  result  from  the  long- 
continued  and  insistent  demand  of  several  States,  and  may 
not  be  fully  expressed  in  any  series  of  agreements.  Again,  the 
whole  family  of  nations  may  unite  in  requiring  each  of  its 
members  to  consent  to  a  particular  exemption,  and  so  create  a 
general  duty  of  acquiescence.  Regardless  of  the  process  by  which 
the  consent  is  obtained,  the  exemption,  when  once  established, 
becomes  necessarily  a  part  of  the  local  law.  It  is  local  because  it 
is  applied  within  the  territory  of  a  State ;  and  it  is  a  law  because 
it  is  sanctioned  by  the  supreme  power  within  a  State."*  Thus,  it  is 
the  law  of  China,  pursuant  to  treaty,  that  the  American  citizen 
who  commits  murder  within  the  territory  of  that  country  shall 

1  Report  on  Extraterritorial  Crime,  For.  Rel.  1887,  765. 

*  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Bragg,  Minister  to  Mexico,  May  4, 
1888,  For.  Rel.  1888,  II,  1189,  Moore,  Dig.,  II,  240. 

3  Marshall,  C.  J.,  in  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  137. 
See,  also,  in  general,  Hall,  5  ed.,  167-200. 

*  Mather  v.   Cunningham,   105  Maine,  326,  338. 

Declared  Finlay,  L.  C,  in  the  case  of  Casdagli  v.  Casdagli,  [1919]  A.  C. 
145  "The  jurisdiction  exercised  by  His  Majesty  in  Egypt  is  indeed  extra- 
territorial, but  it  is  exercised  with  the  consent  of  the  Egyptian  Government, 
and  its  jurisdiction  is  therefore,  for  this  purpose,  really  part  of  the  law  of 
Egypt  affecting  foreigners  there  resident.  ...  In  Egv-pt  it  is  part  of  the  law 
of  the  governing  communitv  or  supreme  Power ;  in  other  words,  it  is  part  of 
the  law  of  Egypt  that  English  residents  are  governed  by  English  law."     (156 

428 


NATURE  OF  EXEMPTIONS  [§  245 

be  punished  according  to  the  laws  of  the  United  States,  and  by 
an  American  tribunal  exercising  judicial  functions  on  Chinese 
soil.^  It  may  be  regarded  as  the  local  law  of  every  State  that 
•  the  heads  of  foreign  powers  shall  be  exempt  from  its  jurisdiction 
whenever  they  enter  its  domain.^ 

Because  the  exercise  of  exclusive  jurisdiction  throughout  the 
national  domain  is  essential  to  the  maintenance  of  the  supremacy 
of  the  territorial  sovereign,  the  most  solid  grounds  of  inter- 
national necessity  must  be  shown  in  order  to  justify  a  demand 
that  a  State  consent  to  an  exemption ;  convincing  evidence  of 
usage  must  be  furnished  in  order  to  prove  that,  in  the  absence 
of  treaty,  the  sovereign  has  in  fact  agreed  to  yield  it.  It  be- 
comes important,  therefore,  to  examine  the  reasons  urged  in  be- 
half of  exemptions  habitually  demanded,  as  well  as  the  processes 
by  which  they  are  conceded,  and  the  extent  to  which  they  are  ad- 
mitted to  exist.  It  is  important  also  to  observe  the  nature  and 
purpose  of  particular  exemptions ;  whether,  for  example,  they 
are  due  to  the  official  character  of  an  individual,  or  to  the  function 
which  he  is  supposed  to  fulfill ;  or  to  the  relation  between  himself 
and  some  person  or  thing  that  is  exempt;  or  to  his  method  of 
entering  the  territory  of  a  State,  or  to  the  inapplicability  of  cer- 
tain laws  to  him. 

§  245.    The  Same. 

Exemption  from  local  jurisdiction  does  not  imply  exemption 
also  from  all  local  control.  It  will  be  found  that  persons  or  things 
regarded  as  exempt  from  the  former  are  frequently,  under  normal 
conditions,  subjected  to  varying  degrees  of  the  latter.  Although 
a  particular  individual  may  not  be  amenable  to  local  process, 
he  may,  nevertheless,  be  prevented  from  committing  acts  re- 
garded as  detrimental  to  the  public  welfare,  and  rendered  illegal 
by  local  enactment.^ 

and  161.)  It  is  said  in  this  connection  by  Prof.  Beale  that  "The  acceptance 
by  the  House  of  Lords  of  the  doctrine  that  the  law  administered  in  the  con- 
sular courts  is  so  administered  because  it  is  part  of  the  territorial  law  of  the 
sovereign,  means  its  universal  acceptance."     Harvard  Law  Rev.,  XXXIII,  3. 

See,  also,  Lord  Hobhouse,  in  Secretarv  of  State  r.  Charlesworth,  Pilling 
&  Co.,  [1901]  A.  C.  373,  .385,  quoted  by  Sir  Francis  Piggott.  Exterritoriidity, 
new  ed.,  Hong  Kong,  1907,  5-6. 

>  Art.  XI  of  treatv  of  June  18,  1858,  Malloy's  Treaties,  I,  215 ;  also  Art. 
XVII  of  treatv  of  Oct.  8,  1903,  id.,  269. 

2  Mighell  t'.'  Sultan  of  Johore,  Court  of  Appeal,  L.  R.  1894,  Q.  B.  Div.,  I, 
149,  Moore,  Dig.,  II,  558. 

'  See  excellent  statement  in  Moore,  Dig.,  IV.  678;  also  Mr.  Hay,  Secy,  of 
State,  to  Mr.  Wight,  Feb.  17,  1900,  243  MS.  Dom.  Let.  104,  Moore,  Dig., 
IV,  679. 

429 


§  245]         RIGHTS  AND    DUTIES   OF  JURISDICTION 

The  term  extraterritoriality,  or  exterritoriality,  has  frequently 
been  employed  not  only  to  describe  the  character,  but  also  to 
indicate  the  reason  for  the  existence  of  various  exemptions ;  ^  and 
in  the  latter  connection,  to  signify  that  persons  or  things  are  im- 
mune from  local  process  because  they  are  to  be  regarded  as  "de- 
tached portions  of  the  State  to  which  they  belong,  moving  about 
on  the  surface  of  foreign  territory  and  remaining  separate  from 
it."  ^  Even  when  confined  to  its  descriptive  function,  the  term 
is  employed  to  refer  to  immunities  accorded  to  entities  or  things 
which  are  essentially  different.  The  foreign  vessel  of  war  which, 
for  example,  enjoys  exemption  from  local  jurisdiction,  bears  no 
resemblance  to  the  parcel  of  land  occupied  by  a  foreign  legation 
which,  although  the  habitat  of  a  diplomatic  officer  himself  exempt 
from  the  local  jurisdiction,  is,  nevertheless,  subject  to  certain 
applications  of  the  local  criminal  code  with  respect  to  offenses 
there  committed  by  non-diplomatic  persons.^ 

To  assert  the  principle  of  exterritoriality  as  the  reason  for  the 
existence  of  an  exemption,  is  to  contend  that  a  foreign  political 
power  may  penetrate  the  territory  of  a  State,  and  there  lawfully 
assert  a  will  in  derogation  of  that  of  its  territorial  sovereign.^ 
Such  an  occurrence  would  mark  the  defiance  of  the  supremacy 
of  that  sovereign  within  its  own  domain,  and  thereby  ignore  a 
principle  which  enlightened  powers  have  acted  upon,  and  have 
utilized  as  the  basis  of  their  system  of  international  justice. 

(2) 

§  246.   Heads  of  Foreign  States. 

According  to  Chief  Justice  Marshall,  the  equality  and  inde- 
pendence of  "sovereigns",  and  the  common  interest  impelling 

1  See,  for  example,  language  of  Mr.  Gushing,  Atty.-Gen.,  in  the  course  of  an 
opinion  addressed  to  Mr.  Marcy,  Secy,  of  State,  April  28,  1855,  7  Ops.  Attys.- 
Gen.,  122,  130,  131,  Moore,  Dig.,  II,  578. 

2  Hall,  Higgins'  7  ed.,  §  48. 

^  See,  for  example,  case  of  Nitchencoff,  a  Russian  subject,  who  committed 
an  assault  in  the  house  of  the  Russian  Ambassador  at  Paris,  described  in 
Moo.-e,  Dig..  II.  778,  citing  Solic.  Journal,  X.  56,  Nov.  18,  1865;  also  Mr. 
Jackson,  Charge,  to  Mr  Hay,  Secy,  of  State,  July  5,  1899,  For.  Rel.  1899, 
318.  Moore.  Dig.   II,  778-779. 

*"  Exterritoriality  has  been  transformed  from  a  metaphor  into  a  legal 
fact.  Persons  and  things  which  are  more  or  less  exempted  from  local  juris- 
diction are  said  to  be  in  law  outside  the  State  in  which  they  are.  In  this  form 
there  is  evidently  a  danger  lest  the  significance  of  the  conception  should  be 
exaggerated.  If  exterritoriality  is  taken,  not  merely  as  a  rough  way  of  de- 
scribing the  effect  of  certain  immunities,  but  as  a  principle  of  law,  it  becomes, 
or  at  any  rate  it  is  ready  to  become,  an  independent  source  of  legal  rule,  dis- 

430 


HEADS   OF   FOREIGN   STATES  [§  246 

them  to  mutual  intercourse,  have  given  rise  to  a  waiver  of  juris- 
diction over  the  persons  of  the  heads  of  foreign  States,  as  well 
as  over  certain  other  agencies  thereof.^  It  must  be  clear  that 
whatever  is  closely  identified  with  or  symbolic  of  the  political 
power  of  members  of  the  society  of  nations  should  not  be 
treated  with  the  disrespect  necessarily  implied  by  the  assertion 
of  jurisdictiop  by  a  territorial  sovereign.  What  Hall  refers  to 
as  the  "ground  of  practical  necessity  "affords  at  the  present  time 
an  equally  cogent  reason  for  exemption.^  That  necessity  demands 
that  the  interests  of  a  foreign  State  should  not  be  injured  or 
embarrassed  by  subjecting  to  local  process  such  a  national  repre- 
sentative as  a  president  or  a  king. 

As  a  matter  of  practice,  the  head  of  a  foreign  State,  who,  as 
such,  enters  the  territory  of  any  other,  enjoys,  together  with  his 
personal  suite,  complete  exemption  from  local  jurisdiction.  If  he 
enters  incognito,  he  does  not  forfeit  the  privilege  of  claiming  exemp- 
tion in  case  he  makes  known  his  official  character.^ 

It  is  not  believed  that  the  form  of  the  government  of  a  State 
is  decisive  of  the  existence  or  extent  of  the  exemption  of  the  indi- 
vidual who  is  its  official  head.  The  attempt  to  assert  jurisdiction 
over  the  president  of  a  republic  within  the  domain  of  a  foreign 
power  would  be  justly  regarded  as  a  grave  violation  of  inter- 
national law.^ 

The  head  of  a  foreign  State  is  not  permitted  to  exercise  judicial 
functions  within  the  national  domain,  with  respect  to  persons 
even  of  his  own  suite.  Nor  can  he  properly  afford  asylum  within 
his  residence  to  fugitives  from  local  justice.  By  attempting  thus 
to  thwart  the  authorities  of  the  State,  or  by  otherwise  abusing 
the  privileges  necessarily  accorded  him,  he  would  incur  the 
danger  of  compelling  the  territorial  sovereign  to  expel  him  from 
its  domain. 

One  who  by  any  process  ceases  to  be  the  head  of  a  State,  at  once 
loses  all  right  of  exemption  from  jurisdiction. 

placing  the  principle  of  the  exclusiveness  of  territorial  sovereignty  within  the 
range  of  its  possible  operation  in  all  cases  in  which  practice  is  unsettled  or 
contested.  This  of  course  is  conceivably  its  actual  position.  But  the  ex- 
clusiveness of  territorial  sovereignty  is  so  important  to  international  law  and 
lies  so  near  its  root,  that  no  doctrine  which  rests  upon  a  mere  fiction  can  be 
lightly  assumed  to  have  been  accepted  as  controlling  it."  Hall,  Higgius' 
7  ed.,  §  48,  p.  177.     Also  Scharrenberg  v.  Dollar  S.  S.  Co.,  245  U.  S.  122. 

*  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  137. 
2  Higgins'  7  ed.,  §  48. 

»  Mighell  V.  Sultan  of  Johore,  Court  of  Appeal,  L.  R.  1894,  Q.  B.  Div.,  I, 
149,  Moore,  Dig.,  II,  558. 

*  Bonfils-Fauchille,  7  ed.,  §  632. 

431 


§247J         RIGHTS  AND   DUTIES   OF  JURISDICTION 

(3) 
Foreign  Military  Forces 

(a) 

§  247.   Entering  the  Territory  of  a  State  With  Its  Consent. 

Strong  grounds  of  con\enience  and  necessity  prevent  the  exer- 
cise of  jurisdiction  over  a  foreign  organized  military  force  which, 
with  the  consent  of  the  territorial  sovereign,  enters  its  domain. 
Members  of  the  force  who  there  commit  offenses  are  dealt  with 
by  the  military  or  other  authorities  of  the  State  to  whose  service 
they  belong,  unless  the  offenders  are  voluntarily  given  up.^  If  a 
member,  seeking  to  break  his  connection  with  the  force,  succeeds 
in  fact  in  escaping  from  its  control,  it  is  not  believed  that  the 
military  authority  possesses  the  right  to  pursue,  arrest  and 
punish  him.  The  jurisdiction  of  a  commanding  officer  would 
seem  to  depend  upon  his  retention  of  actual  control  over  the 
individual.  The  territorial  sovereign  may,  of  course,  on  grounds 
of  expediency  or  courtesy,  consent  to  pursuit  and  arrest,  and 
even  the  infliction  of  punishment.^ 

(b) 

§  248.  Entering  the  Territory  of  a  State  Without  Its 
Consent. 
When  a  foreign  military  force  enters  the  territory  of  a  State 
without  its  consent,  it  is  believed  that  the  exemption  of  any 
member  from  local  jurisdiction  should,  on  principle,  depend  solely 
upon  whether  there  is  solid  justification  for  the  expedition  itself. 
If,  for  example,  there  are  present  those  extraordinary  circum- 
stances which,  on  grounds  of  self-defense,  excuse  the  violation  of 
the  national  domain,  the  participants  would  seem  to  be  entitled 
to  such  exemptions  as  they  might  claim  had  the  territorial  sovereign 

1  Declared  Marshall,  C.  J.,  in  the  case  of  Schooner  Exchange  v.  McFaddon  : 
"The  grant  of  a  free  passage,  therefore,  implies  a  waiver  of  all  jurisdiction 
over  the  troops  during  their  passage,  and  permits  the  foreign  general  to  use 
that  discipline,  and  to  inflict  those  punishments,  which  the  government  of  his 
army  may  require."  7  Cranch,  116,  139.  See,  also.  Tucker  v.  Alexandroff, 
183  U.  S.  424. 

Also,  in  this  connection,  see  Mr.  Fish,  Secy,  of  State,  to  Mr.  Cameron,  Secy, 
of  War,  Dec.  7,  1876,  116  MS.  Dom.  Let.  166,  Moore,  Dig.,  II,  400. 

2  In  the  case  of  Tucker  i;.  Alexandroff,  183  U.  S.  424,  435.  the  Supreme 
Court  of  the  United  States  expressed  doubt  whether,  in  the  absence  of  positive 
legislation  by  Congress,  the  President  possessed  the  power  to  authorize  a 
foreign  officer  to  apprehend  deserters  within  the  United  States.  Compare 
situation  in  Casablanca  Case,  J.  B.  Scott,  Hague  Court  Reports,  110. 

432 


CASE  OF  MCLEOD  [§  248 

permitted  the  force  to  enter  the  country.^  If,  however,  those 
circumstances  are  not  present,  and  the  movement  or  expedition 
constitutes  an  essentially  illegal  invasion  of  the  territory  of  a 
friendly  State,  in  time  of  peace,  it  is  difficult  to  see  how  any  mem- 
ber of  the  force  derives  exemption  from  the  local  jurisdiction  by 
reason  of  the  fact  that  his  acts  as  a  participant  are  in  obedience 
to  the  commands  of  a  foreign  sovereign.  Inasmuch  as  no  duty  is 
imposed  upon  the  State  to  permit  the  entrance  of  the  force,  there 
would  seem  to  be  no  duty  to  consent  to  the  surrender  of  juris- 
diction with  respect  to  a  member  of  it.^  For  that  reason  it  is 
to  be  regretted  that  ]\Ir.  Webster,  as  Secretary  of  State,  in  the 
case  of  McLeod,  whose  acts  of  participation  in  the  Caroline  expe- 
dition in  1837  within  the  State  of  New  York  were  ratified  by  the 
British  Government,  declared  that  while  he  deemed  the  expe- 
dition to  be  without  justification,  the  action  of  the  Crown  sufficed 
to  exempt  the  individual  from  local  prosecution  in  New  York.' 

'  This  is  because  the  violation  of  territory  is,  as  has  been  seen,  for  the 
purpose  of  fulfiUing  a  necessary  function  of  government  which  the  State  lacks, 
for  the  time  being,  the  power  or  disposition  to  perform,  and  when  non-per- 
formance would  be  productive  of  grave  and  irreparable  injury  to  the  rights 
of  the  foreign  State  whose  military  force  is  engaged  in  the  expedition.  In 
such  case  the  territorial  sovereign  is  not  in  a  position  to  claim  that  the  absence 
of  its  own  consent  is  proof  of  the  illegality  of  the  penetration  of  its  domain. 

Certain  Non-political  Acts  of  Self-Defense,  supra,  §§  66-67 ;  The  Landing  of 
Foreign  Forces,  supra,  §  202. 

*  It  must  be  acknowledged  that  a  practical  difficulty  may  stand  in  the 
way  of  the  application  of  the  principle  enunciated  in  the  text.  A  State  whose 
force  enters  foreign  territory  will  always  be  reluctant,  if  not  whollj-  unwilling, 
to  admit  that  the  expedition  lacked  justification.  On  the  other  hand  the 
State  whose  territory  is  invaded  may  be  equally  unwilling  to  admit  that  there 
was  reasonable  excuse  for  what  took  place. 

3  See  communication  to  Mr.  Crittenden,  Atty.-Gen.,  March  15,  1841,  Web- 
ster's Works,  VI,  262,  264,  Moore,  Dig.,  II,  25.  Contra,  statement  of  Mr. 
Calhoun,  in  the  Senate,  June  11,  1841,  Calhoun's  Works,  III,  618,  Mobre, 
Dig.,  II,  26. 

Concerning  the  case  of  the  Caroline,  see  supra,  §  66. 

"  In  November,  1840,  Alexander  McLeod  was  arrested  by  the  authorities 
of  the  State  of  New  York  and  held  for  trial  on  a  charge  of  murder  committed 
at  the  time  of  the  destruction  of  the  steamer  Caroline,  December  29,  1837, 
within  the  territorial  jurisdiction  of  that  State.  On  the  13th  December, 
1840,  Mr.  Fox,  the  British  Minister  at  Washington,  on  his  own  resporisi- 
bility  asked  for  his  immediate  release,  on  the  ground  that  the  destruction 
of  the  Caroline  was  'a  pubhc  act  of  persons  in  Her  Majesty's  service,  obeying 
the  order  of  their  superior  authorities';  that  it  could,  therefore,  'only  be 
the  subject  of  discussion  between  the  two  national  Governments',  and  could 
'not  justly  be  made  the  ground  of  legal  proceedings  in  the  United  States  against 
the  persoiis  concerned.'  Mr.  Forsyth,  Secretary  of  State,  replied  on  the  28th 
of  December,  with  the  declaration  that  no  warrant  for  the  interposition  called 
for  could  be  found  in  the  powers  with  which  the  Federal  Executive  was  in- 
vested, but  at  the  same  time  denving  that  the  demand  was  well  founded. 
On  the  r2th  of  March,  1841,  Mr.  Fox,  in  behalf  of  his  CJovernment,  presented 
a  formal  demand  for  McLeod's  immediate  release,  on  the  ground  which  he 
had  previously  stated.  Mr.  Webster,  who  had  then  become  Secretary  of 
State,  made  answer  on  the  24th  of  April,  and,  while  admitting  the  grounds 

433 


§  248]         RIGHTS    A.ND   DUTIES   OP  JURISDICTION 

If  McLeod  was,  according  to  the  law  of  nations,  exempt  from  the 
jurisdiction  of  that  State,  it  was  because  the  violation  of  its  terri- 
tory by  a  British  force  had  been  justified  on  grounds  of  self-de- 
fense, and  the  attending  circumstances  had  satisfied  the  demands 
of  the  legal  principle  which  Mr.  Webster  had  himself  tersely 
enunciated.^ 

(c) 
§  249.    Individual  Members  of  Foreign  Military  Forces. 

The  reasons  of  necessity  and  convenience  which  give  rise  to 
exemptions  accorded  foreign  organized  military  forces  permitted 
to  enter  the  national  domain  are  not  applicable  in  the  case  of 
detached  individuals  belonging  to  foreign  services.  Notwith- 
standing the  right  of  the  territorial  sovereign  to  prosecute  them 
for  the  commission  of  offenses  against  its  laws,  it  may  be  re- 
quested to  surrender  such  offenders,  on  grounds  of  courtesy,  to 
the  authorities  of  their  own  State.  The  United  States  has  made 
such  a  request.^ 

It  is  believed  to  be  important  to  observe  that  in  time  of  peace 
no  individual  gains  immunity  from  local  prosecution  by  reason  of 

of  the  demand,  declared  that  the  Federal  Government  was  unable  then  to 
comply  with  it.  In  May  McLeod  was  taken  down  to  the  city  of  New  York, 
and  was  there  brought  before  a  justice  of  the  supreme  court  of  the  State  on  a 
writ  of  habeas  corpus.  After  a  full  argument,  that  tribunal,  in  July,  refused 
to  discharge  him ;  and  in  the  ensuing  October,  ten  months  after  the  first 
demand  and  seven  months  after  the  second,  he  was  tried  at  Utica,  and  ac- 
quitted on  proof  of  an  alibi.  This  case  led  to  the  adoption  by  Congress 
in  August,  1S42,  of  an  act  to  provide  for  the  removal  of  cases  involving  inter- 
national relations  from  the  State  to  the  Federal  Courts."  Moore,  Dig.,  II, 
24-25,  citing  message  of  Dec.  28,  1840,  H.  Ex.  Doc.  33,  26  Cong.,  2  Sess. ; 
report  of  Feb.  13,  1841,  H.  Report  162,  26  Cong.,  2  Sess. ;  message  of  June  1, 
1841,  S.  Doc.  1,  27  Cong.,  1  Sess.;  message  of  March  8,  1842,  H.  Ex.  Doc. 
128,  27  Cong.,  2  Sess. ;  message  of  Aug.  11,  1842,  H.  Ex.  Doc.  2,  27  Cong., 
3  Sess. ;  message  of  Jan.  23,  1843,  S.  Ex.  Doc.  99,  27  Cong.,  3  Sess. ;  Brit,  ar^ 
For.  State  Pap.,  XXIX,  1126,  and  XXX,  id.,  193;  People  v.  McLeod,  2.^ 
Wend.  483 ;  26  Wend.  663,  Appendix ;  Mr.  Fox,  British  Minister,  to  Mr. 
Webster,  Secy,  of  State,  March  12,  1841 ;  Webster's  Works,  VI,  247 ;  Mr. 
Webster,  Secy,  of  State,  to  Mr.  Fox,  British  Minister,  April  24,  1841,  id., 
250 ;  correspondence  between  Mr.  Forsyth  and  Mr.  Fox,  H,  Ex.  Doc.  33,  26 
Cong.,  2  Sess. 

1  Mr.  Webster.  Secy,  of  State,  to  Lord  Ashburton,  Aug.  6,  1842.  Webster's 
Works.  VI,  301-302,  Moore,  Dig.,  II,  412.  See,  also,  Arce  v  State,  202  S.  W. 
(Texas  Court  of  Crim.  Appeal)  951.  In  this  case  it  was  held  that  the  courts 
of  Texas  were  without  jurisdiction  to  punish  Mexican  soldiers  who,  while 
attached  to  forces  of  Gen.  Carranza,  killed  American  soldiers  in  the  course  of 
a  battle  in  Texas.  The  decision  was  based  on  the  theory  that  while  at  the 
time  of  the  killing  there  was  no  "public  or  complete  war"  existmg  between 
the  Ignited  States  and  Mexico,  the  battle  was  an  act  of  war  and  technically 
within  the  limited  meaning  of  the  word  "war." 

2  Mr.  Seward,  Secy,  of  State,  to  Gen.  Salgar,  Colombian  Minister,  Mardi 
30,  1865,  MS.  Notes  to  Colombia,  VI,  182,  Moore,  Dig.,  II,  561. 

434 


FOREIGN  VESSELS  OF  WAR  [§  250 

the  fact  that  he  is  a  member  of  an  absent  foreign  miHtary  force, 
and  that  the  act  charged  against  him  was  committed  in  obedience 
to  a  military  or  other  command  emanating  from  a  foreign  State. ^ 


(4) 
Foreign  Vessels  of  War 

(a) 

§  250.    Their  Public  Character  and  Its  Proof. 

A  naval  vessel  built  and  launched  within  the  territory  of  a 
State  other  than  that  of  the  owner,  does  not  acquire  the  status 
of  a  foreign  vessel  of  war  until  the  flag  of  the  sovereign  is  hoisted 
upon  her.  Prior  to  that  time  certain  immunities  from  local 
jurisdiction  may  doubtless  be  claimed  in  behalf  of  the  ship,  on 
the  ground  that  she  is  the  property  of  a  foreign  power.  She 
does  not,  however,  possess  a  quality  such  that  acts  committed  on 

'  See,  in  this  connection,  Horn  v.  Mitchell,  223  Fed.  549.  In  this  case  one 
Horn  was  held  in  custody  by  the  United  States  Marshal  for  the  District  of 
Massachusetts  to  answer  to  an  indictment  charging  the  prisoner  with  illegal 
transportation  of  explosives  interstate,  from  New  York  to  Boston,  and  from 
Boston  to  Vanceboro,  Maine,  and  alleging  that  such  transportation  was  neces- 
sarily connected  with  and  a  part  of  the  destruction  of  a  bridge  which  was 
(near  Vanceboro  and  in  British  territory)  in  the  possession  of  the  British 
Government.  The  prisoner  sought  release  by  habeas  corpus,  contending  in 
part,  that  he  was  not  subject  to  prosecution  on  the  indictment  found  against 
him  in  the  District  of  Massachusetts,  because  he  was  an  officer  of  the  Ger- 
man army  and  had  committed  the  acts  alleged  to  be  a  violation  of  Ameri- 
can law  in  connection  with  an  attack  upon  British  territory.  The  petitioner 
relied  upon  Section  753  of  the  Revised  Statutes,  by  virtue  of  which  he  con- 
tended that  he  was  entitled  to  have  the  question  of  his  immunity  from  prose- 
cution on  account  of  his  alleged  connection  with  the  German  army  determined 
upon  habeas  corpus  proceedings.  On  the  assumption  that  the  statute  should 
be  given  such  construction,  the  United  States  District  Court  was  not  of 
opinion  that  the  petitioner  brought  himself  within  its  provisions,  for  the 
reason  that  while  he  was  a  subject  of  a  foreign  State,  it  did  not  appear  that  he 
was  domiciled  within  its  territory,  or  that  the  acts  in  question  were  author- 
ized or  commanded  by  the  foreign  State  whose  commission  he  held.  In  the 
absence  of  such  authorization  it  was  declared  that  the  prisoner  could  not 
invoke  the  law  of  nations  or  his  foreign  commission  in  his  defense.  The  court 
was  unwilling  to  yield  to  the  contention  that  the  petitioner  had  presumptive 
authority  to  act  for  his  government  in  a  foreign  country  and  to  bind  it  by 
what  he  did  there. 

It  is  believed  that  even  if  the  petitioner's  contention  was  sound  respecting 
his  right  to  have  the  question  of  his  immunity  from  prosecution  determined 
on  habeas  corpus  proceedings,  the  Act  of  Congress  on  which  he  relied  would 
not  have  sufficed  to  justify  his  release  even  had  he  proved  conclusively  his 
domicile  to  be  in  Germany  and  express  authorization  from  the  German  Gov- 
ernment. It  cannot  be  admitted  that  the  law  of  nations,  to  which  the  statute 
adverts,  bases  a  right  of  exemption  upon  the  foreign  governmental  authoriza- 
tion of  the  actor  save  when  the  foreign  sovereign  is  itself  excused  from  disre- 
garding the  supremacy  of  a  friendly  State  within  the  limits  of  its  territory. 

435 


§  250]         RIGHTS  AND    DUTIES   OF  JURISDICTION 

board  of  her,  are,  for  any  reason,  to  be  regarded  as  not  cogni- 
zable in  the  local  courts.^ 

The  commission  of  the  commander  of  a  vessel  is  conclusive 
of  her  public  character.^  Evidence  of  that  fact  is  also  furnished 
by  her  flag,  or  by  the  statement  of  the  commander  upon  his  word 
of  honor.  Local  authorities  are  not,  however,  in  case  of  doubt, 
obliged  to  accept  the  latter  as  final .^ 

(b) 

§  251.   Exemption  from  Local  Process. 

Opinion  in  the  United  States  respecting  the  existence  and  scope 
of  immunities  to  be  accorded  foreign  vessels  of  war  has  under- 
gone a  marked  development  since  the  close  of  the  eighteenth 
century.^  In  June,  1794,  Mr.  Bradford,  Attorney-General,  was 
of  opinion  that  a  WTit  of  habeas  corpus  might  be  awarded  to  bring 
before  a  local  court  an  American  citizen  unlawfully  detained  on 
board  a  foreign  vessel  of  war.^  The  same  year,  however,  ]\Ir. 
Randolph,  Secretary  of  State,  informed  the  British  Minister 
that  such  a  vessel  within  a  friendly  port  was  ordinarily  exempt 
from  the  local  jurisdiction.®  In  1799,  ]Mr.  Lee,  Attorney-General, 
was  of  opinion  that  civil  or  criminal  process  might  be  served  on 
board  of  a  British  man-of-war  within  the  waters  of  the  L^nited 
States.^  It  should  be  observed  that  an  Act  of  Congress  of  June 
5,  1794,  had  authorized  the  President  to  employ  the  military  and 
naval  forces  of  the  United  States  or  its  militia,  to  enforce  the 

1  Tucker  v.  Alexandroff,  183  U.  S.  424,  440,  citing  The  Constitution  (1879), 
L.  R.  4  P.  D.  39,  and  The  Parlement  Beige,  4  P.  D.  129,  Moore,  Dig.,  II,  562. 

2  Declared  Story,  J.,  in  The  Santis.sima  Trinidad,  7  Wheat.  283,  335-33^  : 
"In  general  the  commission  of  a  public  ship,  signed  by  the  proper  author- 
ities to  which  she  belongs,  is  complete  proof  of  her  national  character." 

'  Hall,  5  ed.,  161,  quoted  in  Naval  War  College,  Int.  Law  Topics,  1906, 
122. 

*  Opinion  in  England  seems  to  have  undergone  an  equally  great  change, 
since  Lord  Stowell,  in  1820,  advised  His  Majesty's  Government  relative  to  the 
case  of  an  Englishman  who,  as  a  political  fugitive,  took  refuge  on  board  a 
British  man-of-war  at  Callao.  Report  of  Roval  Commission  on  Fugitive 
Slaves,  LXXVI,  226,  cited  in  Westlake,  2  ed.,'l,  268.  Concerning  the  his- 
tory of  opinion  and  usage  respecting  the  immunities  of  vessels  of  war,  see 
Hall,  Higgins'  7  ed.,  §  54. 

'  1  Ops.  Attys.-Gen.,  47.  In  concluding  his  opinion  the  Attorney-General 
declared  that  while  a  writ  of  habeas  corpus  might  be  legally  awarded  in  a 
case  such  as  that  confronting  him,  "the  respect  due  to  the  foreign  sovereign  " 
might  require  that  a  "clear  case  be  made  out  before  the  writ  be  directed  to 
issue." 

« Communication  to  Mr.  Hammond,  July  23,  1794,  7  MS.  Dom.  Let.  55, 
Moore,  Dig.,  II,  574.  See,  also,  Mr.  Randolph.  Secv.  of  State,  to  Mr.  Fauchet, 
French  Minister,  Nov.  17.  1794,  7  MS.  Dom.  Let.  403,  Moore,  Dig.,  II,  574. 

'  1  Ops.  Attys.-Gen.,  87. 

436 


THE    SCHOONER    EXCHANGE    v.    McFADDON      [§  252 

obedience  of  foreign  public  armed  vessels  to  the  process  of  courts 
of  the  United  States.^  In  1805,  Congress  reasserted  the  right, 
and  made  provision  for  the  exercise  of  jurisdiction  over  persons 
committing  offenses,  even  as  slight  as  misdemeanors,  on  foreign 
vessels  of  war  within  the  waters  of  the  United  States.^  The 
President,  in  pursuance  of  the  requirement  that  he  issue  instruc- 
tions for  carr^'ing  the  act  into  effect,  did  issue  instructions,  which 
carefully  avoided  the  possibility  of  a  resort  to  force  in  order  to  ef- 
fect an  arrest,  unless  under  the  express  direction  of  the  Executive."'' 

§  252.    The  Same. 

In  1812,  in  the  case  of  The  Schooner  Exchange  v.  McFaddon, 
the  Supreme  Court  of  the  United  States  rendered  a  decision  which 
has  since  guided  the  legislative  and  judicial  departments  of  the 
Government.^  The  case  raised  the  question  whether  a  vessel 
commissioned  as  a  man-of-war  by  the  French  Government  was, 
upon  entering  a  port  of  the  United  States,  subject  to  the  juris- 
diction of  a  local  court,  whose  aid  was  invoked  by  former  owners 
of  the  vessel  to  determine  whether  their  title  had  been  lawfully 
divested  by  French  authority.  Chief  Justice  Marshall,  in  the 
opinion  of  the  Court,  adverted  to  the  exclusive  and  absolute 
jurisdiction  of  a  State  within  its  own  territory.  He  declared  that 
any  restriction  thereof  was  to  be  derived  from  the  nation's  con- 
sent ;  that  such  consent  might  be  express  or  implied,  and  might  in 
some  instances  be  tested  by  common  usage,  and  by  common  opin- 
ion growing  out  of  that  usage.     He  said  that  a  public  armed  vessel 

constitutes  a  part  of  the  military  force  of  her  nation ;  acts 
under  the  immediate  and  direct  command  of  the  sovereign ;  is 
employed  by  him  in  national  objects.  He  has  many  and  power- 
ful motives  for  preventing  those  objects  from  being  defeated  by 
the  interference  of  a  foreign  State.  Such  interference  cannot 
take  place  without  affecting  his  power  and  his  dignity.  The 
implied  license  therefore  under  which  a  vessel  enters  a  friendly 
port,  may  reasonably  be  construed,  and  it  seems  to  the  Court, 
ought  to  be  construed,  as  containing  an  exemption  from  the 
jurisdiction  of  the  sovereign,  within  whose  territory  she  claims 
the  rights  of  hospitality.  .  .  .  Without  doubt  the  sovereign 
of  the  place  is  capable  of  destroying  this  implication.     He  may 

1  Sections  7  and  8,  Chap.  50,  1  Stat.  384. 

bisections  1  and  7,  Chap.  41,  Act  of  March  3,  1805,  2  Stat.  339  and  342. 
See,  also,  statement  in  Moore,  Dig.,  II,  575. 

^  Instructions  of  May  29,  1805,  contained  in  Moore,  Dig.,  II,  575,  citing 
Circulars,  Dept.  of  State,  I,  3,  4. 

^  7  Cranch,  IIG,  Moore,  Dig.,  II,  576-577. 

437 


§  252]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

claim  and  exercise  jurisdiction  either  by  employing  force,  or 
by  subjecting  such  vessels  to  the  ordinary  tribunals.  But  until 
such  power  be  exerted  in  a  manner  not  to  be  misunderstood,  the 
sovereign  cannot  be  considered  as  having  imparted  to  the  ordi- 
nary tribunals  a  jurisdiction,  which  it  would  be  a  breach  of 
faith  to  exercise.^ 

It  is  not  surprising  that  the  learned  Chief  Justice  understood 
clearly  that  all  exemptions  from  jurisdiction  were  necessarily 
derived  from  the  consent  of  the  territorial  sovereign,  or  that  he 
appreciated  the  force  of  the  reasons  why  that  consent,  in  the  case 
of  foreign  vessels  of  war,  ought  to  be  given.  It  is  of  greater 
significance  that,  in  view  of  the  previous  attitude  of  his  own 
country,  he  concluded  that  such  consent  was  in  fact  to  be  ascribed 
to  the  United  States  or  to  nations  generally.  The  decision  was  due 
to  the  assumption  that  an  enlightened  State  intended  to  act  in 
good  faith,  and  to  the  belief  that  there  should  be  imputed  to  it 
actual  consent  to  whatever  yielding  of  jurisdiction  the  observ- 
ance of  good  faith  might  demand.  The  declaration,  on  the  other 
hand,  that  a  State  might,  if  it  so  desired,  and  sufficiently  made 
known  its  intention,  withhold  consent  and  retain  jurisdiction, 
is  also  of  importance.  It  was  not  intimated  (nor  was  there  need 
of  intimation)  that  such  action  would  constitute  an  abuse  of 
power.  The  Court  was  confronted  with  a  simple  problem :  to 
decide  whether  the  statutes  of  a  State,  descriptive  of  the  ordi- 
nary jurisdiction  of  its  tribunals,  ought  to  be  so  construed  as  to 
give  them  jurisdiction  in  a  case  in  which  the  territorial  sovereign 
had  impliedly  consented  to  waive  its  jurisdiction.  On  that  pre- 
cise question  the  decision  was  in  the  negative. 

This  case  settled  the  law  with  respect  to  the  United  States. 
Since  the  decision  there  has  been  no  disposition  on  the  part  of 
Congress  to  assert  jurisdiction  over  foreign  vessels  of  war.^ 

§  253.     The  Same. 

At  the  present  time  a  foreign  vessel  of  war  and  the  occupants 
thereof  are  acknowledged  to  be  exempt  from  local  process.^    The 

1  7  Cranch,  144  and  146. 

2  The  Act  of  May  15,  1820,  forbidding  foreign  armed  vessels  for  a  period 
of  two  years  to  enter  any  harbors  of  the  United  States,  other  than  those 
specified  in  the  Act,  3  Stat.  597,  was  primarily  an  assertion  of  the  right  to 
exclude  such  vessels  from  territorial  waters,  rather  than  an  exercise  of  juris- 
diction over  those  permitted  to  enter  therein.  See  statement  in  Moore,  Dig., 
II,  564.  See,  also,  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Comacho,  Venezuelan 
Minister,  Dec.  9,  1880,  MS.  Notes  to  Venezuela,  I,  210,  Moore,  Dig.,  II,  565. 

3  In  addition  to  The  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116,  see 

438 


OBLIGATIONS    OF    THE    VESSEL  [§  253 

ship  cannot  be  lawfully  subjected  to  a  civil  action  arising,  for 
example,  from  r.  claim  for  salvage,^  or  to  a  criminal  action  arising 
from  the  violation  of  a  local  regulation.  No  occupant  while 
remaining  on  board  the  vessel  is  subject  to  the  local  jurisdiction, 
notwithstanding  his  infraction  of  the  local  criminal  code  by  an 
act  committed  on  shore  or  taking  effect  there. ^ 

The  vessel  of  war  and  its  occupants  owe,  nevertheless,  well- 
defined  duties  to  the  territorial  sovereign.  The  former  is  obliged 
to  respect,  for  example,  local  regulations  pertaining  to  naviga- 
tion and  quarantine,^  and  special  obligations,  when,  in  time  of 
war,  the  vessel  attached  to  a  belligerent  service  enters  a  neutral 
port.  Disregard  of  them  may  compel  the  territorial  sovereign 
to  resort  to  measures  of  prevention,  and  if  need  be,  to  cause  the 
ship  to  depart  from  its  waters.'*  Moreover,  it  may  not  unreason- 
ably request  of  the  commander  or  of  his  government  the  sur- 
render of  an  inmate  whose  conduct  has  wrought  grave  harm  ashore 
in  violation  of  the  local  criminal  law.^ 

Mr.  Marcy,  Secy,  of  State,  to  Mr.  Dobbin,  Secy,  of  Navy,  April  21,  1856, 
45  Dom.  Let.  212,  Moore,  Dig.,  II,  578;  Opinions  of  Mr.  Gushing,  Atty.- 
Gen.,  April  28,  1855,  and  Sept.  6,  1856,  7  Ops.  Attys.-Gen.,  122,  131,  and 
8  Ops.  Attys.-Gen.,  73,  Moore,  Dig.,  II,  578;  Dana's  Wheaton,  Dana's  Note 
No.  63.     ALSO  riie  Pampa,  245  Fed.  137. 

1  See  The  Constitution,  L.  R.  4  P.  D.  39,  45,  Moore,  Dig.,  II.  579.  Con- 
cerning circumstances  when  a  foreign  vessel  of  war  as  plaintiff  in  a  suit  brought 
against  another  vessel  may  be  compelled  to  give  security  for  damages,  see  The 
Newbattle,  L.  R.  10  P.  D.  33,  Moore,  Dig.,  II,  579. 

C/.,  also.  Naval  War  College,  Int.  Law  Situations,  1907,  22-45,  containing 
the  decision  of  Sir  Francis  Piggott  in  the  case  of  The  Alexander,  a  United 
States  naval  auxiliary  vessel  which  had  been  subjected  to  &  civil  suit  arising 
from  a  collision  in  the  harbor  of  Hong  Kong,  in  1906. 

2  See  opinions  of  Mr.  Gushing,  Atty.-Gen.,  April  28,  1855,  and  Sept.  6, 
1856,  7  Ops.  Attys.-Gen..  122,  and  8  Ops.  Attvs.-Gen.,  73,  Moore,  Dig.,  II. 
578;  Mr.  Fish,  Secy,  of  State,  to  Commodore  Case,  Jan.  27,  1872,  92  Dom. 
Let.  322,  Moore,  Dig.,  II,  579  and  588. 

See,  also.  Arts.  XV  and  XVI  of  Regulations  Concerning  the  Legal  Status 
of  Ships  and  their  Crews  in  Foreign  Ports,  adopted  by  the  Institute  of  Inter- 
national Law  in  1898,  Annuaire,  XVII,  273,  277,  J.  B.  Scott,  Resolutions, 
143, 147. 

3  Mr.  Hill,  Acting  Secy,  of  State,  to  Secy,  of  the  Navy,  Oct.  6,  1899,  240 
MS.  Let.  399,  Moore,  Dig.,  II,  583 ;  also  memorandum  of  Mr.  Lemly,  Judge- 
Advocate-General,  U.  S.  N.,  communicated  to  Mr.  Moore,  Third  Assist. 
Secy,  of  State,  July  6,  1891,  Moore,  Dig.,  II,  584;  also  Woolsey,  6  ed.,  92- 
93.     Cf.  Access  to  Ports,  supra,  §  187. 

*  See,  for  example,  Chap.  30,  title  V,  §  10,  Act  of  June  15,  1917,  40  Stat. 
223,  U.  S.  Comp.  Stat.  1918,  §  10179,  authorizing  the  compeUing  of  any  for- 
eign vessel  to  depart  from  the  United  States  or  its  possessions  in  all  cases  in 
which,  "by  the  law  of  nations  or  the  treaties  of  the  United  States,  it  ought  not 
to  remain." 

*  This  is  the  more  obvious  when  the  act  complained  of  is  committed  out- 
side of  the  vessel.  See  Mr.  Fish,  Secy,  of  State,  to  Commodore  Case,  Jan. 
27,  1872,  relative  to  the  surrender  of  a  person  charged  with  the  commission 
of  an  offense  rendered  extraditable  by  a  treaty  with  the  demanding  govern- 
ment, 92  MS.  Dom.  Let.  322,  Moore,  Dig.,  II,  579. 

439 


§  254]         RIGHTS   AND    DUTIES   OF   JURISDICTION 

(C) 

§  254.   Duty  Not  to  Grant  Asylum. 

The  territorial  sovereign  may  fairly  and  normally  object  to 
the  conduct  of  the  commander  of  a  foreign  public  vessel  who  uti- 
lizes the  exemption  from  local  jurisdiction  enjoyed  by  the  ship, 
to  grant  asylum  thereon  to  fugitives  from  justice,  and  thus  to 
shield  them  from  the  operation  of  local  laws.^  In  Regulations 
of  the  United  States  Navy  of  1913,  it  was  declared  that  "the 
right  of  asylum  for  political  or  other  refugees  has  no  foundation 
in  international  law."  It  was  stated,  however,  that  where  fre- 
querit  insurrections  occur  and  constant  instability  of  government 
exists,  "usage  sanctions  the  granting  of  asylum."  It  was  said 
that  even  in  the  waters  of  such  countries  officers  should  refuse 
all  applications  for  asylum,  except  when  required  by  the  interests 
of  humanity  in  extreme  or  exceptional  cases,  such  as  the  pursuit 
of  a  refugee  by  a  mob ;  and  it  was  added  that  officers  must  not 
directly  or  indirectly  invite  refugees  to  accept  asylum.^ 

'  See  discussion  of  the  subject  in  Moore,  Dig.,  II,  845-855,  and  documents 
there  cited ;  also.  Naval  War  College,  Int.  Law  Situations,  1902,  21-27 ,  id. 

1904,  26-34. 

^  See  Article  R-1649,  U.  S.  Navy  Regulations  and  Naval  Instructions, 
1913;  also  Wilson,  Int.  Law,  1910,  p.  118,  note  46,  quoting  Regulations  of 

1905,  No.  308. 

Concerning  the  asylum  granted  certain  Chilean  refugees  on  American 
vessels  of  war  in  1891,  see  Moore,  Dig.,  II,  851-852,  citing  H.  Ex.  Doc.  91, 
52  Cong.,  1  Sess.,  71  and  289. 

Concerning  the  asylum  granted  certain  Brazilian  refugees  on  Portuguese 
vessels  of  war  in  1894,  and  the  consequences  thereof,  cf.  For.  Rel.  1894,  64- 
73.  and  513,  Moore,  Dig.,  II,  853-855.  See,  also,  Mr.  Olney,  Secy,  of  State, 
to  Mr.  Sill,  Minister  to  Korea,  telegram,  Dec.  2,  1895,  For.  Rel.  1895,  II,  974, 
in  which  strong  opposition  was  expressed  to  the  suggestion  of  the  Minister 
to  permit  certain  political  refugees  in  his  hands  to  take  passage  on  the  U. 
S.  S.  Yorktown  for  Shanghai.  See  correspondence  between  the  United  States 
and  Mexico,  1909-1910,  For.  Rel.  1910,  739-742,  respecting  the  conveyance 
of  Gen.  Zelaya  out  of  Nicaraguan  territory  as  a  refugee  on  a  Mexican  gun-- 
boat. 

On  Oct.  28,  1913,  the  Department  of  State  declared  :  "While  the  rule  gov- 
erning such  cases  is  that  it  is  the  duty  of  American  men  of  war  to  protect 
American  citizens,  it  is,  as  a  general  rule,  against  the  policy  of  this  Govern- 
ment to  grant  asylum  in  its  ships  to  the  citizens  of  foreign  countries  engaged 
m  political  activity,  especially  when  such  asylum  is  for  the  purpose  of  fur- 
thering their  political  plans.  Temporary  shelter  to  such  i)ersons,  when  they 
are  seeking  to  leave  their  country,  has  sometimes  been  conceded  on  grounds  of 
humanity,  but  even  this  is  done  with  great  circumspection  lest  advantage  be 
taken  of  it  to  further  the  political  fortunes  of  individuals  with  the  result  of 
involving  us  in  the  domestic  politics  of  foreign  countries."  For.  Rel.  1913, 
854,  855. 

Art.  XIX  of  the  Regulations  Concerning  the  Legal  Status  of  Ships  and 
their  Crews  in  Foreign  Ports,  adopted  by  the  Institute  of  International  Law 
in  1898,  appeared  to  recognize  the  propriety  of  offering  an  asylum  to  political 
refugees,  as  distinct  from  common  offenders  against  the  local  criminal  law,  or 
deserters  from  a  military  or  naval  service.  It  was  declared,  however,  that  if 
the  commander  of  the  foreign  vessel  of  war  should  receive  political  refugees 

440 


OFFICERS  AND  CREWS  [§  255 

When  a  fugitive  from  justice  is  once  received  on  board  of  a 
foreign  vessel  of  war  within  the  territorial  waters  of  a  State  he  is 
believed  to  be  withdrawn  from  the  local  jurisdiction.^  Although 
his  reception  may  have  amounted  to  an  abuse  of  the  privileges 
accorded  the  vessel,  the  territorial  sovereign  does  not  from  that 
circumstance  derive  a  right  of  jurisdiction  over  the  ship  or  its 
occupants.^  If  the  individual  has  been  wrongfully  taken  on 
board,  and  so  improperly  withdrawn  from  the  control  of  the  terri- 
torial sovereign,  a  demand  for  his  surrender  should  be  made  upon 
the  commander  of  the  vessel,^  or  upon  the  State  to  which  the  vessel 
belongs,  through  the  diplomatic  channel,  and  following  the  pro- 
cedure applicable  in  extradition  cases. ^ 

(d) 
§  255.   Officers  and  Crews. 

The  exemption  enjoyed  by  persons  officially  connected  with 
and  on  board  of  a  foreign  public  vessel  does  not  accompany  them 
after  they  have  left  the  ship  or  its  tenders  and  are  on  shore.  If  a 
body  of  sailors  under  the  command  of  an  officer  is  permitted  to 
land  as  an  organized  force,  as  for  the  purpose  of  taking  part  in  a 
local  parade,  the  members  are  doubtless  exempt  from  the  local 
jurisdiction,  not,  however,  on  account  of  their  connection  with  a 
public  vessel,  but  because  they  constitute  an  organized  force  of  a 
foreign  State  permitted  to  enter  the  national  domain.^ 

Officers  and  crews  of  foreign  vessels  of  war,  who  commit  offenses 
while  ashore,  are  generally  subject  to  local  prosecution.^  In  deal- 
on  board,  it  should  be  clearly  established  that  they  were  such,  and  that  their 
admission  should  be  under  conditions  such  as  not  to  constitute  assistance 
by  him  to  one  of  the  parties  in  dispute  to  the  prejudice  of  the  other.  An- 
nuaire,  XVII,  278,  J.  B.  Scott,  Resolutions,  148. 

i  See  Oppenheim,  2  ed.,  I,  §  450. 

2  When,  in  time  of  war,  a  neutral  vessel  of  war  attempts  to  remove  from  a 
port  under  belligerent  occupation  persons  expressly  forbidden  to  depart  there- 
from, without  permission  of  the  military  authorities,  the  belligerent  may,  as 
such,  justly  employ  reasonable  means  to  block  the  attempt  by  searching  the 
vessel  and  taking  off  the  individuals.  See  Moore,  Dig.,  II,  849-850,  citing 
Dip.  Cor.  1863,  II,  915,  also  Dip.  Cor.  1866,  II,  611-612,  id.  1867,  II,  705. 

3  Mr.  Fish,  Secv.  of  State,  to  Mr.  Case,  Jan.  27,  1872,  MS.  Dom.  Let.  322, 
Moore,  Dig.,  II.  851. 

*  See  case  of  the  Salvadorean  refugees,  and  relating  thereto,  President 
Cleveland,  Annual  Message,  Dec.  3,  1894,  For.  Rel.  1894,  xiv,  Moore,  Dig., 
II,  851 ;  also  article  by  J.  B.  Moore,  in  A7n.  Law  Rev.  XXIX,  1. 

See  Art.  XXI  of  Regulations  Concerning  the  Legal  Status  of  Ships  and  their 
Crews  in  Foreign  Ports,  adopted  by  the  Institute  of  International  Law  in  1898, 
Annuaire,  XVII,  278,  J.  B.  Scott,  Resolutions,  149. 

5  Tucker  t;.  Alexandroff,  183  U.  S.  424,  433,  Moore,  Dig.,  II,  590;  Exercise 
of  Jurisdiction  within  the  National  Domain,  On  Land,  supra,  §  220. 

6  Mr.  Randolph,  Secy,  of  State,  to  Mr.  Hammond,  July  23,  1794,  7  MS. 
Dom.  Let.  55,  Moore,  Dig.,  II,  585;    Mr.  Buchanan,  Secy,  of  State,  to  Mr. 

441 


§  255]         RIGHTS   AND    DUTIES   OF  JURISDICTION 

ing  with  the  former,  however,  it  is  said  to  be  the  duty  of  police 
authorities  to  have  regard  for  the  rank  of  the  offenders,  and  to 
accord  them,  while  under  arrest,  treatment  that  shall  not  betray 
disrespect  towards  the  naval  service  of  their  country.^ 

Possibly  the  commander  of  a  vessel  of  war  who  goes  ashore  in 
order  to  accomplish  an  end  directly  connected  with  or  incidental 
to  the  public  business  which  brought  his  vessel  into  the  port, 
ought  not,  while  so  engaged,  to  be  amenable  to  local  process,  pro- 
vided he  does  not,  in  the  course  of  his  errand,  viojate  the  local 
law.  It  is  believed  that  he  should  not,  for  example,  be  arrested 
for  an  offense  committed  during  a  previous  visit,  or  be  served 
with  process  in  a  civil  suit  charging  him  with  tortious  conduct  at 
any  prior  timc.^  It  is  not  known,  however,  that  such  an  exemption 
within  the  limits  stated  has  been  claimed  or  granted  by  the  United 
States. 

For  reasons  of  courtesy  and  expediency,  a  usage  has  arisen  per- 
mitting foreign  officers  to  seize  and  take  on  board  their  ships,  with- 
out obstruction,  members  of  crews  who  have  become  intoxicated 
and  whose  offenses  have  not  been  directed  against  persons  or 
property  ashore ;  ^  likewise,  to  exercise  the  customary  authority 
for  the  maintenance  of  discipline  over  seamen,  remaining  ostensibly 
within  the  foreign  naval  service,  and  subject  to  its  de  facto  control.^ 
Such  officers  obviously  possess  no  right,  however,  to  arrest  sea- 
men who  have  deserted  and  escaped  from  actual  control.^ 

(5) 

§  256.    Other  Vessels  in  Foreign  Public  Service. 

The  reasons  which  justify  and  demand  the  exemption  from  local 
jurisdiction  of  foreign  vessels  of  war  are  applicable  also  to  other 
ships  devoted  to  foreign  public  service.     This  is  fully  acknowledged 

Leal,  Brazilian  Charge,  Aug.  30,  1847,  S.  Ex.  Doc.  35,  30  Cong.,  1  Sess.,  29, 
Moore,  Dig.,  II,  586;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Webb,  Jan.  23, 
1867,  MS.  Inst.  Brazil,  XVI.  162,  Moore,  Dig..  II,  590;  Mr.  Fish,  Secy,  of 
State,  to  Commodore  Case,  Jan.  27,  1872,  92  Dom.  Let.  322,  Moore,  Dig.,  II, 
588 ;  Mr.  Sherman,  Secv.  of  State,  to  Mr.  McKenzie,  Minister  to  Peru,  tele- 
gram, AdHI  2,  1897,  MS.  Inst.  Peru,  XVIII.  24,  Moore,  Dig.,  II,  588. 

^  See  Case  of  the  Forte,  Moore,  Arbitration^,  V,  4925-4928,  citing  Brit,  and 
For.  State  Pap.,  LIII.  150,  id.,  LIV,  579,  Moore,  Dig.,  II,  587. 

^  Declares  Hall:  "Even  the  captain  is  not  considered  to  be  individually 
exempt  in  respect  of  acts  not  done  in  his  capacity  of  agent  of  his  State." 
Higgins'  7  ed.,  208. 

'  Mr.  Buchanan,  Secv.  of  State,  to  Mr.  Leal.  Brazilian  Charge,  Aug.  30, 
1847.  Senate  Ex.  Doc.  35,  30  Cong.,  1  Sess..  28,  32.  Moore,  Dig.,  II,  589. 

*  Tucker  v.  Alexandroff,  183  U.  S.  424,  433,  Moore,  Dig.,  II,  590. 

442 


OTHER  VESSELS  IN  FOREIGN  PUBLIC  SERVICE      [§  253 

with  respect  to  vessels  owned  and  possessed  by  a  State,  and  notably 
when  they  belong  to  some  department  of  the  government.^ 

i\merican  courts  appear,  however,  to  have  encountered  difficulty 
in  agreeing  as  to  the  circumstances  when  a  foreign  merchant  vessel 
requisitioned  by  the  government  of  its  own  State  is  likewise  to  be 
accorded  exemption.-  There  seems  to  be  no  doubt  that  the  essen- 
tially public  character  of  a  ship  is  not  lost  by  reason  of  her  in- 
cidental use  as  a  vehicle  of  commerce,  provided  the  vessel  be  em- 
ployed substantially  for  national  purposes.^  Again,  as  to  whether 
a  ship  is  so  employed  and  concerning  the  fact  of  requisition,  the 
courts  of  the  United  States  are  disposed  to  accept  the  declaration 
of  the  foreign  sovereign  making  the  claim.  Doubtless  an  appro- 
priate method  of  suggesting  to  a  tribunal  the  interest  of  such  a 
sovereign  is  through  the  medium  of  the  executive  branch  of  the 
government.^  The  Supreme  Court  has  recently  deemed  inade- 
quate the  suggestion  in  behalf  of  a  foreign  embassy  presented 
by  private  counsel  appearing  as  amici  curioB.^ 

According  to  the  trend  of  a  group  of  American  decisions,  req- 
uisition does  not  suffice  to  exempt  a  foreign  ship  from  local  juris- 
diction unless  the  vessel  is  within  the  actual  possession  of  the  au- 
thorities of  the  sovereign  thus  attempting  to  assert  control.^    This 

'  Thus  revenue  cutters,  or  ships  belonging  to  any  department  of  a  foreign 
State,  would  be  doubtless  accorded  exemption  without  question. 

2  During  The  World  War,  both  before  and  after  the  Llnited  States  became  a 
belligerent,  numerous  ships  were  requisitioned  by  European  powers,  and  im- 
pressed into  the  public  service  for  use  in  transporting  supplies  across  the  Atlan- 
tic.    Certain  of  these  vessels  were  libeled  in  American  ports. 

3  See  The  Parlement  Beige,  L.  R.  5  P.  D.  197,  in  contrast  to  The  Charkieh, 
L.  R.  8  Q.  B.  197. 

See,  also,  The  Maipo,  252  Fed.  627 ;  The  Maipo,  259  Fed.  367 ;  also,  The 
Jassy,  1906,  10  Aspinwall,  278. 

*  See  procedure  followed  in  the  case  of  The  Schooner  Exchange  v.  McFaddon, 
7  Cranch,  116,  118;    The  Pizarro,  19  Fed.  Cases,  No.  11,199;    The  Luigi, 

230  Fed.  493,  495 ;  The  Maipo,  252  Fed.  627 ;  The  Carlo  Poma,  259  Fed.  369. 
s  In  re  Muir,  41  Sup.  Ct.  Rep.  185;    The  Pesaro,  U.  S.  Sup.  Ct.,  Feb.  28, 

1921.  See  The  Roseric,  254  Fed.  154,  162-163,  where  the  Court  received  and 
acted  upon  the  suggestion  in  behalf  of  a  foreign  State,  and  made  known  by 
counsel  for  its  embassy,  acting  as  amid  curice.  Compare  The  Florence  H., 
248  Fed.  1012,  1017. 

In  the  case  of  The  Adriatic,  258  Fed.  902,  the  Circuit  Court  of  Appeals, 
Third  Circuit,  declared  that  where  the  suggestion  was  made  by  the  British 
Ambassador,  appearing  as  amicus  curi/r,  it  felt  bound,  on  principles  of  inter- 
national comity,  to  accept  the  suggestion  and  avowal  "as  conclusivelj'  es- 
tablishing both  the  fact  of  the  requisition  and  its  governmental  character." 
Haight,  J.,  904.     See,  also.  The  Athanasios,  228  Fed.  558. 

8  See,  for  example.  The  Attualita,  238  Fed.  909;  The  Tampa,  245  Fed, 
137 ;  The  Maipo,  252  Fed.  627.    See  also  The  Johnson  Lighterage  Co.  No.  24, 

231  Fed.  365,  366-367. 

In  the  case  of  The  Carlo  Poma,  259  Fed.  369,  370,  it  was  stated  by  way  of 
dictum  by  Ward,  J.,  in  behalf  of  the  Circuit  Court  of  Appeals  (Second  Cir- 
cuit) :  "The  law  of  the  United  States  is  the  same  [as  the  English],  except  that 

443 


§  256]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

requirement  may  be  attributable  to  a  decision  of  the  Supreme 
Court  of  the  United  States  in  1869,  in  a  case  not  involving  any 
question  of  international  law.^  On  principle,  however,  it  would 
seem  that  not  the  ownership  or  exclusive  possession  of  a  ship  by  a 
foreign  sovereign  gives  rise  to  the  claim  of  immunity,  but  rather 
the  appropriation  and  devotion  of  the  vessel  to  the  public  service 
under  governmental  authority.  This  idea  has  found  some  judi- 
cial approval  in  the  United  States.^     When  a  ship  which  has  been 

the  immunity  of  property  of  a  sovereign,  whether  the  United  States  or  a  foreign 
sovereign,  depends,  not  mereh"  upon  the  ownership,  but  also  upon  the  actual 
possession  bv  the  sovereign  of  the  property  at  the  time  the  process  is  served. 
The  Davis.  10  Wall.  15,  19  L.  Ed.  875;  Long  v.  The  Tampico  (D.  C),  16  Fed. 
491 ;  The  Attualita,  238  Fed.  909,  152  C.  C.  A.  43."  It  may  be  noted  that 
in  this  case  the  vessel  was  owned  and  operated  by  the  Italian  Government,  and 
clearly  entitled  to  the  exemption  demanded  in  its  behalf.  See,  in  this  con- 
nection, Fred  K.  Nielsen,  "Lack  of  LTniformitv  in  the  Law  and  Practice  of 
States  with  Regard  to  Merchant  Vessels",  Atn.'j.,  XIII,  1,  12-21. 

'  The  case  was  that  of  The  Davis,  10  Wall.  15,  where  the  question  was 
whether  personal  property  of  the  United  States  on  board  a  vessel  for  transpor- 
tation, was  subject  to  a  lien  for  salvage  services  rendered  in  saving  the  prop- 
erty ;  and  whether,  also,  such  a  'ien  should  be  enforced  when  the  property  was 
not  in  the  possession  of  an  officer  of  the  Government,  and  the  process  of  the 
Court  could  be  enforc  d  in  a  proceeding  in  rem  without  disturbing  the  posses- 
sion of  the  Government.  No  question  of  international  law  was  involved.  The 
reason  for  permitting  the  enforcement  of  the  lien  under  the  circumstances 
stated,  was  because  such  action  did  not  conflict  with  the  theory  on  which  the 
Government  was  exempt  from  local  process  without  its  own  consent.  That 
theory  was  not  identical  with  that  on  which,  under  the  law  of  nations,  a  foreign 
sovereign  claims  and  enjoys  exemption  for  vessel  property.  The  distinction 
between  the  nature  of  the  two  claims  was  thus  tersely  emphasized  by  Charles  H. 
Weston  in  "Actions  Against  the  Propert^v  of  Sovereigns",  Harv.  Law  Rev., 
XXXII,  266,  270:  "It  is  said  that  the  principle  governing  both  cases  is  the 
same  since  immunity  is  granted  out  of  respect  for  th '  'independence  of  sov- 
ereign authority.'  In  so  far  as  this  phrase  expres.ses  the  policy  underlying 
the  decisions,  ft  merely  cloaks  the  difference  between  them.  In  cases  involving 
the  local  sovereign  it  represents  the  State's  need  for  executive  freedom  from 
harassing  litigation.  In  cases  involving  the  foreign  sovereign  it  indicates 
the  desire  to  avoid  international  friction  by  substituting  diplomatic  negotia- 
tions for  the  decrees  of  local  tribunals." 

See,  also.  The  Roseric,  254  Fed.  154,  161,  where  Rellstab,  J.,  declared 
"The  immunity  of  the  sovereign's  instrumentalities  devoted  to  public  service 
from  the  process  of  its  own  courts,  as  I  understand  the  previous  cases,  is  not 
based  upon  the  idea  that  it  may  be  'safely  accorded',  but  on  account  of  its 
dignity  and  independence,  and  because  it  is  necessary,  for  the  well-being  of 
the  nation  that  it  serves,  that  it  shall  not  be  hampered  or  interfered  with  in 
the  use  of  such  instrumentalities. 

"In  the  case  of  the  courts  of  one  sovereignty  waiving  jurisdiction  over 
another  sovereignty's  instrumentalities,  the  thought  of  safety  to  private 
litigants,  to  my  mind,  is  at  least  equally  irrelevant.  The  immunity  in  such 
cases,  as  alreadv  noted,  is  based  upon  the  idea  that  sovereigns  are  of  equal 
dignity  and  indenendence,  and  that  out  of  regard  for  such  rights,  and  to 
maintain  and  further  amicable  relations  among  them,  it  is,  by  tacit  agreement, 
recognized  as  needful,  in  certain  particulars,  that  one  sovereign  should  decline 
to  exercise  some  of  its  prerogatives  when  to  exercise  them  would  necessarily 
place  another  sovereign  in  a  subordinate  position." 

*  Rellstab,  J.,  in  The  Roseric,  254  Fed.  154,  160.  See,  also,  the  reasoning 
in  The  Parlement  Belge(1900),  L.  R.  5  P.  D.  197,  217;  The  Crimdon,  35  Times 
L.  R.  81 ;   The  Messicano,  32  Times  L.  R.  519. 

444 


NEED    OF    GENERAL   AGREEMENT  [§  257 

requisitioned  for  a  definite  public  service,  such  as  an  admiralty 
transport,  is  engaged  in  the  carriage  of  governmental  supplies, 
and  the  officers  acknowledge  the  duty  to  obey  the  governmental 
assertion  of  control  and  act  accordingly,  the  circumstance  that  the 
vessel  is  neither  owned  nor  actually  possessed  by  the  requisitioning 
State  would  appear  to  be  immaterial.  In  such  case  the  dedica- 
tion of  the  ship  to  the  public  service  would  seem  to  render  the  con- 
structive possession  by  the  sovereign  as  efficacious  for  purposes 
of  exemption  as  actual  possession  manifested  by  the  assertion  of 
control  through  the  medium  of  its  own  officers.^ 

§  257.   The  Same. 

Should  the  nationalization  of  merchant  vessels,  by  requisition 
or  any  other  process,  serve  to  create  a  large  volume  of  tonnage 
engaged  under  governmental  control  in  commercial  enterprise, 
and  notably  in  foreign  trade,  there  would  be  reason  to  withhold 
exemptions  not  accorded  private  ships,  unless  there  was  definite 
understanding  that  the  State  of  the  flag  should  assure  full  re- 
sponsibility for  the  conduct  of  its  vessels,  and  also  place  within  the 
reach  of  the  individual  claimant  a  simple  and  direct  means  of 
obtaining  justice.^  Obviously  the  matter  is  one  demanding  gen- 
eral international  agreement  to  establish  a  reasonable  substitute 
for  the  broad  yielding  of  jurisdiction  by  the  territorial  sovereign.^ 
It  should  be  observed,  however,  that,  in  the  meantime,  any  restric- 
tion of  the  existing  right  of  exemption  is  hardly  a  matter  within 
the  discretion  of  the  courts.^     While   the   individual  State  may 

1  See  Brief  by  Messrs.  Coudert  Brothers,  in  support  of  suggestion  of  British 
Embassy  in  the  case  of  Muir  v.  Chatfield,  in  the  Supreme  Court  of  the  United 
States,  October  Term,  1918,  No.  28,  Original. 

^  It  is  beheved  that  the  success  with  which  the  principles  laid  down  in  the 
case  of  The  Schooner  Exchange  v.  McFaddon,  and  in  that  of  The  Parlement 
Beige  have  generally  been  invoked  in  behalf  of  foreign  public  vessels  has  been 
due  in  part  to  the  infrequency  of  the  demand  for  exemption  from  local  process, 
and  also  to  the  resulting  circumstance  that  the  mutual  public  benefits  at- 
tributable to  respect  for  the  exemption  claimed  have  far  outweighed  any 
opposing  equities  of  the  hbelants.  It  is  not  without  significance  that  the 
number  of  litigated  cases  in  the  United  States  between  1915  and  1919  far 
exceeded  that  of  those  confronting  American  tribunals  throughout  the  entire 
previous  life  of  the  nation. 

'  As  to  the  nature  of  an  efficacious  substitute  there  may  be  a  wide  diversity 
of  opinion.  It  may  be  suggested  that  the  establishment  of  an  international 
maritime  tribunal  or  commission  available  as  a  court  of  first  instance  within 
the  port  of  the  territorial  sovereign,  and  supposedly  representative  of  the 
State  of  the  ship  as  well  as  of  that  sovereign  might  fulfill  the  necessary  func- 
tion. The  numerous  treaty  provisions  conferring  upon  a  consular  officer 
jurisdiction  of  certain  classes  of  disputes  arising  between  officers  and  crew  of 
merchant  vessels  of  his  nation  afford  a  significant  precedent. 

*  Hough,  J.,  in  The  Maipo,  259  Fed.  367. 

445 


§  257]         RIGHTS   AND   DUTIES   OF   JURISDICTION 

not  lawfully  by  legislative  enactment  modify  the  requirements 
of  international  law,  it  may  without  impropriety  express  its  own 
view  as  to  what  they  demand,  and  in  so  doing  announce  a  rule  for 
the  guidance  of  its  courts. 

(6) 

§  258.    Other  Foreign  Public  Property. 

The  matter  of  the  exemption  from  local  jurisdiction  of  public 
property  belonging  to  a  foreign  State  and  other  than  its  vessels, 
is  affected  by  the  principle  that  a  foreign  sovereign  cannot  be 
sued  without  its  consent.  The  attempt,  therefore,  to  make  it  a 
party  defendant  and  incidentally  attach  its  property,  must  fail.^ 
If  such  a  sovereign  invokes  the  aid  of  a  local  court  of  equity  in 
order  to  acquire  possession  of  property  to  the  title  of  which  it  has 
succeeded,  it  may,  doubtless,  be  fairly  deterred  from  taking  pos- 
session without  satisfying  a  lien  accruing  prior  to  its  ownership.^ 
While  a  foreign  State,  on  becoming  a  plaintiff,  subjects  itself  to 
the  obligation  to  satisfy  a  set-off  arising  out  of  the  same  action, 
it  does  not  expose  itself  to  the  defense  of  a  proceeding  setting  up 
another  claim  in  respect  of  another  and  entirely  distinct  matter.^ 
Such  a  State  by  bringing  suit  does  not  subject  itself  to  a  counter- 
claim on  which  an  affirmative  judgment  is  asked.^ 

With  respect  to  property  owned  by  a  foreign  sovereign,  exemp- 
tion is  yielded,  according  to  American  judicial  opinion,  when  the 
owner  or  its  agent  has  possession.^     When  it  lacks  possession,  the 

1  Hassard  v.  United  States  of  Mexico,  61  N.  Y.  Supp.  939,  affirmed  in  173  N.  Y. 
645  (commented  on  by  John  W.  Foster,  in  Yale  Law  J.,  IX,  283-286) ;  Mason  v. 
Intercolonial  Ry.,  197  Mass.  349  fcommented  on  in  Mich.  Law  Rev.,  VI,  575) ; 
Kingdom  of  Roumania  v.  Guaranty  Trust  Co.,  250  Fed.  341;  also  De  Haber 
V.  Queen  of  Portugal,  17  Q.  B.  196;   The  Parlement  Beige,  L.  R.  5  P.  D.  197. 

See,  also,  Nathan  Wolfman,  "Sovereigns  as  Defendants'",  Am.  J.,  IV,  373; 
Charles  H.  Weston,  "Actions  against  the  Property  of  Sovereigns",  Harvard 
Law  Rev.,  XXXII,  266. 

2  United  States  of  America  v.  Prioleau,  35  L.  J.  Chancery,  n.  s.  7,  Moore, 
Dig.,  I.  64. 

^  Kingdom  of  Roumania  v.  Guaranty  Trust  Co.,  250  Fed.  341,  reversing 
244  Fed.  195 ;    People  v.  Dennison,  84  N.  Y.  272. 

See,  also.  South  African  Republic  v.  Compagnie  Franco-Beige,  1898,  1  Ch. 
Div.  190,  195,  citing  Duke  of  Brunswick  v.  King  of  Hanover,  6  Beav.  38; 
situation  in  case  of  Von  Hellfeld  v.  Russian  Government,  Prussian  Court  for 
Determination  of  Jurisdictional  Conflicts,  1910,  Am.  J.,  V,  490. 

In  the  case  of  Mighell  v.  Sultan  of  Jahore.  1  Q.  B.  1894,  149,  the  exceptional 
situation  was  noted  in  the  case  in  which  a  foreign  sovereign  might  be  named 
as  defendant  for  the  purpose  of  giving  him  notice  of  the  claim  which  the 
plaintiff  made  to  funds  in  the  hands  of  a  third  person  or  trustee  over  which 
the  court  had  jurisdiction.  See,  also,  Strousberg  v.  Republic  of  Costa  Rica. 
44  Law  Times  R.,  199. 

*  French  Republic  v.  Inland  Nav.  Companv,  263  Fed.  410. 

6  In  the  case  of  Mason  v.  Intercolonial  Ry.  Co.,  197  Mass.  349,  the  property 

446 


OTHER  FOREIGN  PUBLIC  PROPERTY  [§  258 

property  may  be  attached ;  ^  but  there  is  a  constant  requirement 
that  no  foreign  sovereign  be  made  a  party  defendant. 

It  may  be  urged  that  the  scope  of  the  exemption  should  be  as 
broad  as  that  demanded  for  and  appHcable  to  vessel  property, 
and  that  dedication  to  a  public  service  of  a  foreign  sovereign  rather 
than  ownership  or  possession  by  it  should  afford  the  test  of  im- 
munity.^ Certain  American  cases  declaring  possession  to  be  es- 
sential to  exemption  of  foreign  public  property,  do  not  appear 
to  assert  a  different  rule  from  what  is  assumed  or  declared  to  be 
applicable  to  vessels.  It  should  be  noted,  however,  that  Chief 
Justice  Marshall  in  the  case  of  The  Schooner  Exchange  v.  McFad- 
don,  observed  that  there  was  under  certain  circumstances  a  dis- 
tinction between  the  two  classes  of  property.^  While  it  must  be 
constantly  borne  in  mind  that  the  reason  for  the  immunity  of  a 
sovereign  from  the  process  of  its  own  courts  is  not  that  which 
gives  rise  to  the  exemption  of  a  foreign  State  from  local  jurisdic- 
tion, and  that  grounds  for  the  restriction  of  the  immunity  in  the 
former  case  are  not  necessarily  decisive  in  the  latter,  it  is  not 
believed  to  be  arbitrary  to  require  in  the  case  of  property  other 
than  vessels  a  somewhat  narrower  basis  of  exemption.  It  is 
hardly  unreasonable  to  disregard  the  mere  fact  of  dedication  to 
the  public  service  of  a  foreign  sovereign,  if  it  is  neither  the  owner 
nor    possessor  of  the  property.      If,  however,   a  foreign  public 

was  in  the  possession  of  trustees  in  behalf  of  the  defendant  company  which 
was  the  property  of  a  foreign  sovereign.  The  court  deemed  itself  to  be  with- 
out the  right  to  take  jurisdiction  in  an  action  of  trustee  process  against  the 
trustees.     See,  also,  dictum  in  Tucker  v.  Alexandroff,  183  U.  S.  424,  440. 

iSee  The  Johnson  Lighterage  Co.  No.  24,  231  Fed.  36.5;  Long  v.  The 
Tampico,  16  Fed.  491 ;   also  dictum  in  The  Carlo  Poma,  259  Fed.  369,  370. 

In  the  ca=!e  of  Vavasseur  v.  Krupp,  L.  R.  9  Ch.  Div.  351,  Moore,  Dig.,  II, 
591,  the  Mikado  of  Japan  was  permitted  to  remove  from  British  territory 
shells  brought  from  Germany  to  England  for  the  use  of  Japanese  vessels  of 
war  there  building,  notwithstanding  the  attempt  of  local  patentees  claiming 
infringement  of  their  rights  as  such,  to  prevent  persons  in  possession  of  the 
shells  from  delivering  them  to  those  vessels. 

2  C.  H.  Weston,  in  Harv.  Lmv  Rev.,  XXXII,  266,  270-271. 

^  Thus  he  declared:  "Without  indicating  any  opinion  on  this  question,  it 
may  safely  be  affirmed,  that  there  is  a  manifest  distinction  between  the  pri- 
vate property  of  the  person  who  happens  to  be  a  prince,  and  that  military 
force  which  supports  the  sovereign  power,  and  maintains  the  dignity  and  the 
independence  of  a  nation.  A  prince,  by  acquiring  private  property  in  a  for- 
eign country,  may  possibly  be  considered  as  subjecting  that  property  to  the 
territorial  jurisdiction;  he  may  be  considered  as  so  far  laying  down  the 
prince,  and  assuming  the  character  of  a  private  individual ;  laut  this  he 
cannot  be  presumed  to  do,  with  respect  to  any  portion  of  that  armed  force, 
which  upholds  his  crown,  and  the  nation  he  is  intrusted  to  govern." 
7  Cranch,  116,  145. 

Obviously  this  distinction  cannot  be  taken  to  stand  for  more  than  the 
reason  behind  it ;  but  it  seems  to  be  important  partly  as  suggesting  that  others 
might  be  made  which  also  should  be  entitled  to  respect. 

447 


§  258]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

sovereign  establishes  the  ownership,  and  demands  possession  and 
control,  it  is  greatly  to  be  doubted  whether  absence  of  possession 
should  destroy  the  claim  of  exemption,  at  least  in  a  case  where  no 
adverse  lien  has  attached  to  the  property  prior  to  the  sovereign's 
acquisition  of  title.^ 

It  may  be  observed  that  the  increasing  tendency  of  States  to 
acquire  property  abroad,  and  thus  to  participate  in  foreign  com- 
merce, oftentimes  in  a  mode  similar  to  that  of  a  private  trader, 
calls  for  general  agreement  establishing  the  effect  of  public  owner- 
ship and  of  the  particular  uses  of  what  is  acquired,  upon  the  duty 
of  the  territorial  sovereign  to  yield  exemption  from  jurisdiction. 
The  problem  is  closely  associated  with  that  arising  from  the  nation- 
alization of  vessel  property  engaged  in  commercial  enterprise. 
If  the  law  of  nations  is  to  remain  flexibly  responsive  to  the  re- 
quirements of  international  intercourse,  definite  principles  should 
be  enunciated  and  agreed  upon,  and  these  must  serve  to  safeguard 
and  promote,  rather  than  jeopardize  and  retard  the  commercial 
transactions  of  private  concerns  with  foreign  States. 

(7) 
Extraterritorial  Jurisdiction 

(a) 
§  259.   In  General. 

For  centuries  before  the  establishment  of  international  law  the 
commercial  cities  of  Europe  exercised  certain  privileges  of  juris- 
diction over  their  own  merchants  living  in  foreign  places  where 
trade  was  enjoyed.^    The  merchants  of  a  particular  city  or  na- 

*  See,  for  example,  Vavasseur  v.  Krupp,  L.  R.  9  Ch.  Div.  351. 

2  See,  in  general,  with  respect  to  the  relation  of  the  United  States  to  the 
exercise  of  extraterritorial  jurisdiction,  Consular  Regulations  (1896),  Sec- 
tions 612-653 ;  documents  in  Moore,  Dig.,  II,  693-727 ;  Instructions  to  Ameri- 
can diplomatic  officers  (1897),  Sections  82-93,  200-240;  Philip  M.  Brown, 
Foreigners  in  Turkey  :  Their  Juridical  Status,  Princeton,  1914 ;  The  Nature 
of  the  Jurisdiction  of  the  United  States  Courts  Established  in  Foreign  Coun- 
tries, Harv.  Law  Rev.,  XXI,  437;  E.  M.  Borchard,  Diplomatic  Protection, 
§§  180  and  202;  Frank  E.  Hinckley,  American  Consular  Jurisdiction  in  the 
Orient,  Washington,  1906;  Report  on  Citizenship  of  the  United  States, 
Expatriation,  and  Protection  Abroad,  bv  Messrs.  J.  B.  Scott,  David  J.  Hill, 
and  Gaillard  Hunt,  59  Cong.,  2  Sess.,  H.  Doc.  No.  326;  James  B.  Angell, 
"The  Turkish  Capitulations",  Am.  Hist.  Assn.,  Annual  Report,  I,  513; 
Edward  A.  Van  Dyck,  Reports  on  the  Capitulations  of  the  Ottoman  Empire, 
Senate  Ex.  Doc.  No.  3,  46  Cong.,  Special  Session,  and  Senate  Ex.  Doc.  No.  87, 
47  Cong.,  1  Sess. 

C/.,  also,  generally,  Pierre  Arminjon,  Etrangers  et  proteges  dans  L'Empire 
Ottoman,  Paris,  1903 ;  Marcel  Baudez,  La  Condition  Juridique  des  Etrangers 
en  Chine,  Paris,   1913;    E.  L.  Dehgeorges,  Die  Kapitulationen  der   Turkei, 

448 


EXTRATERRITORIAL   JURISDICTION    IN    GENERAL     [§  259 

tionality  frequently  resided  in  a  certain  street  or  area  where  their 
consul  acted  as  a  judge  in  controversies  between  them.  This 
practice  was  habitual  in  the  Middle  Ages.  It  extended  from  By- 
zantium to  London,  and  from  Flanders  to  Northern  Africa,  and 
even  to  Asia  Minor.^  It  grew  out  of  the  needs  of  commerce 
which  demanded  the  administration  of  justice  in  behalf  of  foreign 
residents ;  and  justice  could  not  be  obtained  by  any  other  process. 
Upon  the  capture  of  Constantinople  by  Mohammed  II  in  1453, 
permanent  lodgment  was  secured  in  Europe  by  a  power  or  political 
entity  whose  law  was  based  upon  the  Koran,  the  requirements  of 
which  were  not  and  did  not  purport  to  be  applicable  to  non- 
Mussulmans.  Thus  from  the  Ottoman  point  of  view  as  well  as 
from  that  of  European  States,  it  was  unreasonable  that  such  in- 
dividuals should  be  subjected  to  the  operation  of  that  law.^  Im- 
mediately, therefore,  the  Turkish  conqueror  granted  to  the  Jewish 
Rabbi  and  to  the  Armenian  Patriarch  in  that  city  the  right,  and 
imposed  upon  them  likewise  the  duty,  to  maintain  justice  among 
their  respective  co-religionists.^  For  the  same  reason,  jMoslem 
authority  is  said  to  have  yielded  new  and  broader  privileges  with 

Heidelberg,  1907 ;  J.  Hadjilouka,  De  la  juridiction  consulaire  en  Turquie, 
Athens,  1907  ;  W.  E.  Hall,  The  Foreign  Powers  and  Jurisdiction  of  the  British 
Crown,  Oxford,  1895 ;  Sir  H.  Jenkyns,  British  Rule  and  Jurisdiction  Beyond 
the  Seas,  Oxford,  1902 ;  Karl  Lippmann,  Die  Konsularjurisdiktion  im  Orient, 
Leipzig,  1898;  V.  K.  Wellington  Koo,  The  Status  of  Aliens  in  China,  New 
York,  1912 ;  Andre  Mandelstam,  La  justice  ottomane  dans  ses  rapports  avec 
les  puissances  etrangeres,  Paris,  1911 ;  Le  sort  de  V empire  ottoman,  Paris,  1917  ; 
La  Turquie,  Paris,  1918;  Ernest  Nys,  "La  juridiction  consulaire".  Rev.  Droit 
Int.  2  ser.,  VII,  237 ;  G.  Pelissie  du  Kansas,  Le  Regime  des  Capitidations  dans 
L'Empire  Ottoman,  2  ed.,  Paris,  1910 ;  Sir  Francis  Piggott,  Exterritoriality, 
London,  1907  ;  J  Pillaut,  Les  consulats  du  Levant,  Nancy,  1902  ;  Francis  Rey, 
De  la  protection  diplomatique  et  consulaire  dans  les  Echelles  du  Levant  et  de 
Barbaric,  Paris,  1899 ;  James  Harry  Scott,  The  Law  Affecting  Foreigners  in 
Egypt,  Edinburgh,  1907  ;  Georges  Soulie,  Les  droits  conventionnels  des  etrangers 
en  Chine,  Paris,  1916 ;  V.  Stenio,  La  capitulation  de  1535,  Paris,  1915 ;  J. 
Verge,  Des  consuls  dans  les  pays  d'Occident,  Paris,  1903. 

1  E.  Nys,  La  Juridiction  consulaire.  Rev.  Droit  Int.,  2  ser., VII,  237,  239-243. 

^  "The  mussulman  law  was  not  made  for  the  foreigner,  because  he  is  a  non- 
mussulman ;  it  was,  therefore,  necessary  that  he  should  be  subjected  to  his 
own  law.  The  mussulman  law  could  not  protect  him  or  judge  him  or  punish 
him,  inasmuch  as  it  only  protected  or  judged  or  punished  mussulmans ;  it 
was  necessary,  therefore,  that  he  should  be  protected,  judged  and  punished 
by  his  own  law.  The  mussulman  law,  that  is,  the  Jus  quiritium,  is  the  ex- 
clusive right  and  privilege  of  mussulmans  and  it  is  the  Jus  gentium  which 
governs  the  foreigner.  In  other  words,  and  to  resume,  let  us  say  :  the  foreigner, 
traveling  or  residing  in  the  Ottoman  Empire,  remains  subject  to  his  personal 
law,  because  the  law  of  the  Ottoman  Empire,  being  a  religious  law,  cannot  be 
applied  to  him."  G.  Pelissie  du  Rausas,  Le  regime  des  capitulations  dans 
L  Empire  Ottoman,  2  ed.,  I,  21. 

See,  also,  PhiHp  M.  Brown,  Foreigners  in  Turkev,  Chap.  I ;  F.  Rev,  op. 
cit.,  5 ;  Field,  J.,  in  the  case  of  In  re  Ross,  140  U.  S.''453,  462-463 ;  Jarnes  B. 
Angell,  "The  Turkish  Capitulations",  Am.  Hist.  As.sn.,  Annual  Report,  I, 
(1900),  513,  514-515. 

3  See  Pierre  Arminjon,  Etrangers  et  proteges  dans  L'Empire  Ottoman,  I,  13-16. 
VOL.  I — 15  449 


§259]         RIGHTS   AND    DUTIES   OF   JURISDICTION 

respect  to  foreigners  than  the  Greek  Christian  authorities  had 
conceded.  To  the  French  kings  were  granted  the  right,  not  only 
to  exercise  jurisdiction  over  French  subjects,  but  also  to  accord 
protection  to  those  of  other  non-Mussulman  nationalities  who  were 
without  representation.  Such  persons  were  regarded  as  assimilated 
to  French  nationality  and  were  subjected  to  French  jurisdiction.^ 
Under  the  same  jurisdiction  were  even  placed  Ottoman  Christian 
subjects  engaged  solely  in  the  foreign  trade.^  Conversely,  it  was 
later  agreed  that  the  conversion  of  a  Frank  to  the  Mohammedan 
religion  should  result  in  the  loss  of  his  French  nationality,  and 
obviously,  by  implication,  subject  him  to  Turkish  jurisdiction.^ 

A  series  of  unilateral  agreements,  known  as  Capitulations,  from 
early  in  the  sixteenth  to  late  in  the  eighteenth  century,  embodied 
the  concessions  of  the  Ottoman  rulers  in  favor  of  France  and  sev- 
eral European  countries.'*  These  agreements  did  not  specify  with 
precision  the  scope  of  what  was  granted,  but  referred  to,  and  often- 
times purported  to  confirm,  customary  privileges  already  long 
enjoyed.^  Upon  the  Capitulations  were  based  the  treaties  of  the 
nineteenth  century.  They  likewise  referred  to  the  customary 
law.  Thus,  the  treaty  with  the  United  States  of  May  7,  1830,  de- 
clared that  the  exercise  of  the  privileges  therein  described  should 
follow  "the  usage  observed  towards  other  Franks."^ 

1  F  Rey,  Protection  di'plomaiique  et  consulaire  dans  les  Echelles  du  Levant 
et  de  Barbaric,  15-17  ;  E.  Nys,  in  Rev.  Droit  Int.,  2  ser.,  VII,  237,  243-246. 

It  may  be  observed  that  the  right  of  aliens  to  enjoy  the  protection  of  France 
became  also  a  duty  on  their  part.  Declares  Rey,  "The  western  powers  them- 
selves, Portugal,  Spain,  England  and  Holland,  could  not  trade  in  Turkey, 
save  under  the  protection  of  the  [French]  King.  The  banner  of  France  cov- 
ered their  ships,  the  Consul  of  France  protected  their  nationals.  .  .  .  Other 
flags  appeared  in  Turkey,  but  France  remained  the  protector  of  all  Europeans 
that  lacked  representation,  as  it  had  long  been  that  of  innumerable  mission- 
aries sent  by  Rome  to  the  Orient  for  the  purpose  of  restoring  to  the  obedience 
of  the  Pope  the  schismatic  Christians."     Op.  cit.,  15. 

2  See  Capitulations  of  1604,  de  Testa,  Rec,  I,  141,  commented  on  in  F.  E. 
Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  10. 

3  F.  E.  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  11. 

*  For  te.xts  of  the  Capitulations  in  favor  of  France  of  1535,  1604  and  1740, 
see  de  Testa,  Rec,  I,  15, 141  and  186,  respectively.  For  texts  of  those  of  1569 
and  1673,  see  Gabriel  Noradounghian,  Recueil  d'actes  internationaux  de  V Empire 
Ottoman,  Paris,  1897,  I,  88  and  136,  respectively.  For  texts  of  Capitulations 
of  1675  in  favor  of  Great  Britain,  renewing  those  of  1580,  id.,  I,  146.  For 
texts  of  those  of  1809,  see  Brit,  and  For.  State  Pap.,  I,  768.  For  texts  of 
Capitulations  in  favor  of  the  Netherlands,  1680,  Austria,  1718,  and  Russia, 
1783,  see  Noradounghian,  op.  cit.,  I,  169,  220  and  351,  respectively. 

*  F.  Rey,  op.  cit.,  16;  also  statement  in  Moore,  Dig.,  II.  596.  Declares 
Hinckley:  "Whether  the  ancient  usages,  so  frequently  mentioned  and  con- 
firmed in  the  Turkish  capitulations,  included  essential  rights,  not  described 
in  the  texts  of  earlier  documents,  cannot  be  shown.  In  fact  there  is  much 
difference  in  the  provisions  of  the  capitulations  and  even  some  divergence 
upon  important  points."     Op.  cit.,  16. 

»  MaUoy's  Treaties,  II,  1319. 

450 


EXTRATERRITORIAL   JURISDICTION    IN    GENERAL     [§  260 

Gradual  recognition  of  the  principle  that  a  State  should  enjoy 
actual  supremacy  throughout  the  territory  over  which  it  asserted 
control,  together  with  the  establishment  of  national  local  tribunals 
capable  of  administering  justice  for  aliens  as  well  as  natives, 
necessarily  led  to  the  complete  abandonment  of  extraterritorial 
jurisdiction  throughout  Europe  generally.^  In  Turkey,  however, 
the  old  system  remained  and  even  developed.  While  in  Western 
Europe  the  exercise  of  jurisdiction  became  in  fact  the  sole  posses- 
sion of  the  territorial  sovereign,  in  the  Ottoman  Empire  the  Sultan, 
by  reason  of  the  inapplicability  of  the  Mohammedan  law  to  non- 
Mussulmans,  was  unable  to  regain  possession  of  what  had  earlier 
been  relinquished.^ 

The  extraterritorial  privileges  of  western  States  in  oriental 
countries,  such  as  China  and  Japan,  were  not  secured  until  well 
into  the  nineteenth  century,  when  the  supremacy  of  the  terri- 
torial sovereign  had  long  been  recognized  as  a  fundamental  prin- 
ciple of  international  law.  There  was  no  opportunity  for  the 
development  of  a  customary  law  respecting  the  exemptions  of 
resident  aliens.  The  treaties,  therefore,  specified  clearly  what 
was  granted.  The  western  States  gained  no  privileges  of  pro- 
tection, whether  jurisdictional  in  character  or  otherwise,  over  per- 
sons other  than  their  own  subjects  or  citizens.^ 

Exemptions  from  the  local  jurisdiction,  whether  enjoyed  in 
Turkey  or  in  Asiatic  States,  are,  as  has  been  noted,  regarded  as 
necessarily  based  upon  the  consent  of  the  territorial  sovereign.^ 

§  260.   The  Same. 

"In  countries  not  inhabited  by  any  civilized  people,  or  recog- 
nized by  any  treaty  with  the  United  States",  the  United  States 
is  not  reluctant  to  exercise  jurisdiction  through  its  consular  officers 

1  E.  Nys,  in  Rev.  Droit  Int.,  2  ser.,  VII,  237,  243. 

"  But  see  the  attempt  that  was  made  in  September,  1914,  and  described  in 
Rev.  Gen.,  XXI,  487-493. 

3  See  statement  in  Moore,  Dig.,  II,  596.  The  same  writer  declares  also, 
"It  may  be  pointed  out,  as  an  historical  fact,  that  the  practice  of  extraterri- 
toriality in  China  and  Japan  began  with  and  rested  upon  the  treaties,  and  did 
not  originate  in  custom,  as  it  did  in  the  Ottoman  dominions.  This  distinc- 
tion has  important  consequences,  and  should  not  be  lost  sight  of."  Id.,  II. 
602.  See,  also,  F.  E.  Hinckley,  American  Consular  Jurisdiction  in  the  Orient, 
15-16  ;  V.  K.  Wellington  Koo,  The  Status  of  Aliens  in  China,  New  York,  1912, 
Chap.  IX. 

*  Papayanni  v.  Russian  Steam  Navigation  Co.,  2  Moore's  Priv.  C.  C.  n.  s. 
161,  Beale,  Cases  on  Conflict  of  Laws,  I,  87;  also  Piggott,  Extraterritoriality, 
1907  ed.,  7. 

Cf.  Exemptions  from  Territorial  Jurisdiction,  In  General,  supra,  §  244. 

451 


§  260]  RIGHTS   AND    DUTIES   OF   JURISDICTION 

with  respect  to  the  conduct  of  American  citizens  in  such  places.' 
Such  action  is  not  in  defiance  of  the  claim  of  any  political  power 
deemed  to  be  entitled  to  respect  as  a  territorial  sovereign.  The 
problems  incidental  to  the  exercise  of  extraterritorial  jurisdiction 
commonly  arise,  however,  in  relation  to  countries  where  some 
government  exists  which  the  outside  world  regards  as  capable 
of  exercising  rights  of  property  and  control  and  of  possessing  titles 
demanding  respect,  and  with  which,  therefore,  there  has  been 
a  disposition  to  conclude  agreements. 

When  a  State  exercises  a  certain  degree  of  protection  over  a 
region  or  country  within  which  rights  of  extraterritorial  jurisdic- 
tion have  been  yielded,  the  protecting  State  cannot  justly  demand 
the  suspension  or  termination  of  extraterritorial  privileges  until 
it  itself,  by  some  appropriate  process,  assumes  responsibility  for 
the  administration  of  justice.  Such  assumption  takes  place  when, 
for  example,  the  State  by  annexation  asserts  its  own  exclusive 
control  over  the  protected  country.^ 


1  Rev.  Stat.,  §  4088,  U.  S.  Comp.  Stat.  1918,  §  7638. 

See  Mr.  Justice  Holmes,  in  the  course  of  the  opinion  of  the  Court  in  the 
case  of  American  Banana  Co.  v.  United  Fruit  Co.,  213  U.  S.  347,  355- 
356. 

2  A  State,  upon  the  acquisition  of  the  territory  of  a  country  where  extra- 
territorial privileges  are  enjoyed,  obviously  acquires  the  right  to  forbid  the 
further  exercise  of  jurisdiction  by  other  powers.  The  actual  termination  of 
such  privileges  is  sometimes  accomplished  by  treaty.  See,  for  example,  treaty 
between  the  United  States  and  Great  Britain,  Feb.  25,  1905,  relative  to  the 
relinquishment  of  extraterritorial  rights  in  Zanzibar,  For.  Rel.  1905,  485; 
id.,  1907,  I,  569-577 ;  also  treaty  between  the  United  States  and  France 
March  15,  1904,  relative  to  Tunis,  For.  Rel.  1904,  304.  By  reason  of  the  scope 
of  certain  leases  by  China  in  1897  and  1898,  to  Germany,  Russia,  and  Great 
Britain,  respectively,  the  United  States,  as  well  as  other  powers,  except  Japan, 
believed  that  the  several  consular  officers  within  the  leased  areas  lacked  au- 
thority to  exercise  jurisdiction  under  their  existing  exequaturs.  For.  Rel. 
1900,  382  to  390. 

It  is  not  believed  that  a  proclamation  of  martial  law  emanating  from  a 
country  which  has  conceded  extraterritorial  privileges  to  a  foreign  State, 
operates  to  suspend  the  right  of  the  latter  to  exercise  jurisdiction  over  its  own 
nationals.  See  Mr.  F.  W.  Seward,  Acting  Secy,  of  State,  to  Mr.  Maynard, 
June  26,  1877,  MS.  Inst.  Turkey,  III,  251,  Moore,  Dig.,  II,  641.  Concerning 
the  effect,  however,  of  such  a  proclamation  from  a  State  acknowledged  to  be 
for  all  purposes  a  full  member  of  the  family  of  nations,  and  in  actual  control  of 
the  country,  see  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Whitney,  Consular 
Officer  at  tamatave,  Aug.  28,  1883,  108' MS.  Inst.  Consuls,  185,  Moore,  Dig., 
II.  642 ;  also  statement,  id.,  644.  Compare  attitude  of  Mr.  Bayard,  Secy,  of 
State,  in  1889,  relative  to  a  proclamation  of  martial  law  by  German  authori- 
ties at  Apia,  House  Ex.  Doc.  119,  50  Cong.,  2  Sess.,  2,  3,  Moore,  Dig.,  II, 
643. 

See  Brit,  and  For.  State  Pap.,  CVIII,  868,  containing  exchange  of  notes  be- 
tween Great  Britain  and  Greece  in  August  and  September,  19 14,  relative  to 
the  renunciation  by  Great  Britain  of  extraterritorial  rights  in  territories  ac- 
quired by  Greece,  and  in  which  such  rights  under  the  Turkish  Capitulations 
had  been  enjoyed. 

452 


FOR    WHOM    CONCESSION    IS    CLAIMED  [§  261 

(b) 

§  261.   Persons   in  Whose   Behalf  Extraterritorial   Juris- 
diction May  Be  Claimed. 

Notwithstanding  their  lack  of  uniformity,  the  several  treaties 
yielding  privileges  of  extraterritorial  jurisdiction  to  the  United 
States  have,  with  the  exception  of  those  with  Morocco  of  1787 
and  1836,  and  Tripoli  of  1805,  been  alike  in  that  their  provisions 
have  specifically  purported  to  be  applicable  to  cases  concerning 
citizens  of  the  United  States.^  In  the  exercise  of  rights  thereunder, 
the  United  States  has  taken  the  position  that : 

American  nationality  includes  all  persons,  whatever  their 
civil  status,  who  owe  allegiance  to  the  United  States  either  as 
citizens  by  birth  or  by  naturalization  or  as  native  inhabitants 
of  the  insular  possessions,  or  as  seamen  on  American  ships,  or 
as  assistants  or  guards  in  legations  and  consulates,  or,  to  a 
limited  extent,  as  employees  of  American  citizens  in  oriental 
countries.^ 

In  former  years  such  claims  were  productive  of  controversy 
with  Turkey  when,  for  example,  American  jurisdiction  was  de- 
manded in  behalf  of  a  naturalized  American  citizen  of  Turkish 
origin  who,  after  having  expatriated  himself  without  the  consent 
of  the  Sultan,  returned  to  Turkish  territory,  and  was  there  sub- 
jected to  local  criminal  prosecution.  Although  the  United  States 
was  in  such  case  unwilling  to  yield  its  claim,  it  consented,  never- 
theless, to  the  expulsion  of  the  individual  when  he  was  charged  with 
participation  in  a  conspiracy  to  overthrow  the  Turkish  Govern- 
ment.^    The  fact  that  expatriation  and  the  acquisition  of  American 

1  The  treaties  with  Morocoo  of  1787  and  1836,  and  with  Tripoli  of  1805, 
referred  to  "citizens  of  the  United  States,  or  any  persons  under  their  protec 
tion"  ;  the  treaty  with  Tripoh  of  1796,  to  "the  protection  to  be  given  to  mer- 
chants, masters  of  vessels  and  seamen";    the  treaty  with  Siam  of  1833,  to 
"merchants  of  the  United  States  trading  in  the  Kingdom  of  Siam." 

Doubtless  the  inhabitants  of  American  insular  possessions  who  are  nationals 
of  the  United  States  are  to  be  regarded  as  citizens  in  an  international  sense, 
although  such  persons  may  fail  to  be  so  regarded  in  a  constitutional  one.  See 
Report  on  Citizenship  of  the  United  States,  by  Messrs.  Scott,  Hill  and  Hunt, 
207. 

Concerning  the  nature  and  extent  of  the  interposition  of  the  American 
Minister  to  Turkey,  in  1894,  in  the  case  of  the  arrest  and  imprisonment  of 
Turkish  subjects  employed  in  American  Schools,  see  For.  Rel.  1894,  740-749 ; 
also  Hinckley,  86  and  11.5. 

2  F.  E.  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  78,  quoted 
with  approval  by  Mr.  Wilson,  Acting  Secy,  of  State,  to  Mr.  Fletcher,  American 
Charge  at  Peking,  July  30,  1909,  For.  Rel.  1909,  69. 

3  Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President,  Dee.  19,  1895,  For. 
Rel.  1895,  II,  1256,  1259-1262,  Moore,  Dig.,  II,  706-709;  also  Mr.  Root, 
Secy,  of  State,  to  Mr.  Leishman,  American  Minister,  Oct.  19,  1905,  relative 
to  cases  of  Vartanian  and  Afarian,  For.  Rel.  1905,  892-894. 

453 


§  261]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

citizenship  had  lacked  Turkish  authorization  was  not,  however, 
admitted  by  the  United  States  to  afford  a  just  ground  for  expulsion.^ 

A  foreign  seaman  upon  enrollment  as  a  member  of  the  crew  of  a 
vessel  is  said  to  owe  temporary  allegiance  to  the  State  to  which 
the  ship  belongs,  and  in  return  therefor  to  be  entitled  to  invoke  the 
power  of  that  State  for  his  oa\ti  protection.  Thus  for  purposes  of 
extraterritorial  jurisdiction,  a  seaman  enrolled  on  an  American 
vessel  is  regarded  both  by  the  political  and  judicial  departments  of 
the  Government  of  the  United  States  as  of  American  nationality .^ 

Notwithstanding  the  occasional  extension  of  good  offices  of 
American  consular  officials  in  countries  where  extraterritorial 
privileges  have  been  accorded,  in  behalf  and  for  the  protection 
of  nationals  of  so-called  non-treaty  States,  the  United  States  has 
declined  to  exercise  jurisdiction  with  respect  to  such  individuals 
save  with  the  express  consent  of  the  territorial  sovereign.^  Turkey 
appears  at  times  to  have  yielded  assent ;  ^  but  China  has  been 
disposed  to  withhold  it.^ 

1  Mr.  Gresham.  Secv.  of  State,  to  Mr.  Terrell,  Minister  to  Turkey,  March  29, 
1894,  For.  Rel.  1894,  754. 

2  Mr.  Blaine,  Secv.  of  State,  to  Sir  E.  Thornton,  June  .3,  1881,  MS.  Notes, 
Great  Britain,  XVIII,  543,  Moore,  Dig.,  II,  606;  United  States  Consular 
Regulations,  §  629,  p.  268,  Moore,  Dig.,  II,  610;  In  re  Ross,  140  U.  S.  453. 

"British  courts  can  only  e.xercise  criminal  jurisdiction  over  British  subjects, 
and  persons  to  whom  the  privileges  of  subjects  have  been  regularly  extended ; 
they  consequently  have  no  power  to  try  a  foreign  seaman  belonging  to  a  British 
ship  for  any  offence  committed  within  or  without  the  territorial  jurisdiction." 
Hall,  Foreign  Jurisdiction,  142. 

3  Instructions  of  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Denbv,  Jr.,  Ameri- 
can Charge,  1894,  For.  Rel.  1894,  106,  il7,  119  and  124,  in  the  course  of  which 
Mr.  Gresham  said:  "The  consuls  of  the  United  States  in  China  .  .  .  have 
never  been  invested  with  power  to  exercise  jurisdiction  over  the  citizens  or 
subjects  of  another  nation,"  id.,  119,  121.  See  also  Mr.  Adee,  Second  Asst. 
Secy,  of  State,  to  Mr.  Grant,  Consular  Officer  at  Cairo,  Oct.  22,  1890,  134, 
MS.  Inst.  Consuls,  598,  Moore,  Dig.,  II,  754. 

The  exercise  of  protection  by  a  State  over  its  own  nationals,  citizens  or 
persons  of  foreign  nationality  resident  in  a  foreign  country,  does  not  neces- 
sarily call  for  the  exercise  of  jurisdiction.  In  so  far  as  it  does  not,  the  problems 
incidental  to  protection  arising  in  Oriental  countries,  where  certain  extra- 
territorial privileges  are  enjoyed,  do  not  differ  in  kind  from  those  arising  in 
western  States  of  European  civilization.  Hall,  Jurisdiction,  134,  quoted  in 
Report  on  Citizenship  of  the  I'nited  States,  by  Messrs.  Scott,  Hill  and  Hunt, 
203.  It  has  long  been  the  policy  of  the  United  States  not  to  endeavor  to  be- 
come the  protector,  for  purposes  of  jurisdiction  or  otherwise,  of  aliens  resident  in 
countries  where  extraterritorial  privileges  are  secured,  save  under  circumstances 
observed  in  the  text.     See  documents  contained  in  Moore,  Dig.,  II.  727-755. 

^  Notwithstanding  any  willingness  on  the  part  of  Turkey  to  permit  the  pro- 
tection of  an  alien  by  a  countrj'  of  his  choice,  the  Department  of  State  has 
adverted  to  the  fact  that  such  concession  "cannot  constrain  us  to  treat  an 
alien  on  the  footing  of  our  treaties  as  a  citizen,  nor  constrain  the  Government 
of  the  individual  to  respect  his  voluntary  choice  of  another  protection  than 
that  flowing  from  his  natural  allegiance."  Mr.  Adee,  Second-Asst.  Secy,  of 
State,  to  Mr.  Grant,  American  Consular  Officer,  No.  56,  Oct.  22,  1890,  MS. 
Inst.  Consuls,  595,  Moore,  Dig.,  II,  753. 

*  See  Report  on  Citizenship,  by  Messrs.  Scott,  Hill  and  Hunt,  208 ;   Hinck- 

454 


CLASSES  OF  ACTIONS  [§  262 

The  claim  of  jurisdiction  with  respect  to  guards  or  assistants 
in  legations  and  consulates,  has  been  based  upon  the  theory  that 
the  official  duties  of  such  persons  in  the  public  service  of  the  United 
States  should  not  be  subject  to  interference  by  vexatious  suits, 
save  by  some  process  enabling  the  agency  of  government  to  safe- 
guard its  own  interests.^ 

There  seems  to  be  less  reason  to  assert  jurisdiction  with  respect 
to  the  native  servant  employed  by  a  merchant  or  citizen  of  a  State 
enjoying  extraterritorial  privileges.  The  former  lacks  that  peculiar 
relationship  to  the  State  of  his  employer  which  exists  in  the  case 
of  a  seaman  on  one  of  its  merchant  vessels,  or  of  an  assistant 
attached  to  a  consulate.  Nevertheless,  the  practice  has  arisen, 
especially  in  China,  of  yielding  certain  exemptions  with  respect 
to  native  servants.^ 

(c) 
§  262.    Classes  of  Actions. 

The  several  treaties  of  the  United  States  with  countries  yielding 

extraterritorial  jurisdiction  have  manifested  a  resemblance  in  the 

concession  of  jurisdiction  over  American  citizens  charged  with 

the  commission  of  offenses  commonly  regarded  as  criminal.^    Or- 

ley,  American  Consular  Jurisdiction  of  the  Orient,  89,  citing  For.  Rel.  1873, 
II,  139. 

In  1909,  the  Department  of  State  made  the  following  significant  statement 
in  the  course  of  an  instruction  to  Mr.  Fletcher,  American  Charge  at  Peking : 
"The  contention  of  the  Chinese  Government  that  treaty  powers  have  no  juris- 
diction over  citizens  of  non-treaty  nations,  judged  by  the  well-established 
rules  of  international  law,  would  seem  to  be  valid,  and  the  contention  put 
forth  by  some  of  the  treaty  powers  that  'extraterritoriality  is  a  natural  right' 
would  seem  to  be  groundless  and  supported  by  no  recognized  authority  on 
international  law,  at  least  in  so  far  as  can  be  ascertained."     For.  Rel.  1909,  69. 

See,  also.  Aide-memoire  to  the  Russian  Embassy  at  Washington,  Oc':.  11, 
1910,  in  which  the  Department  of  State  declared  that  the  Government  had 
uniformly  taken  the  position  that  "  by  consenting  to  lend  its  good  offices  in 
behalf  of  subjects  of  other  nations,  it  could  not  assume  to  assimilate  such 
subjects  to  citizens  of  the  United  States  and  to  invest  them  with  extraterri- 
torial rights  which  thev  did  not  enjoy  as  subjects  of  the  country  of  their  al- 
legiance."    For.  Rel.  1910,  838. 

1  Mr.  Angell,  American  Minister,  to  the  Turkish  Minister  of  Foreign  Affairs, 
April  23,  1898,  For.  Rel.  1898,  1110,  1111 ;  also  case  of  arrest  in  1899,  of  Cavass 
of  the  American  Consulate  at  Smyrna,  For.  Rel.  1900,  920-934,  especially 
Mr.  Griscom,  American  Minister,  to  Mr.  Hay,  Secy,  of  State,  Jan.  13,  1900, 
U.,  928,  Moore,  Dig.,  II,  744. 

"It  is  the  policy  of  the  United  States  to  limit  to  as  few  as  may  be  abso- 
lutely necessary  the  persons  exempt  from  the  local  jurisdiction  through  their 
being  attached  to  legations  and  consulates  as  assistants,  guards  or  servants 
and  to  maintain  with  firmness  the  protection  of  those  who  are  thus  engaged." 
Hinckley,  85. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Conger,  Minister  to  China,  Jan.  8,  Feb.  10, 
and  Feb.  26,  1900,  For.  Rel.  1900,  396,  399  and  401,  Moore.  Dig.,  II,  599. 
Compare  Mr.  Rives,  Asst.  Secy,  of  State,  to  Mr.  Ropes,  April  28,  1888,  168 
MS.  Dom.  Let.  239,  Moore,  Dig.,  II,  600. 

*  Arts.  XX  and  XXI  of  treaty  with  Morocco  of  January,  1787,  Malloy's 

455 


§  262]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

dinarily  no  distinction  has  been  raised  with  respect  to  the  nation- 
ality of  the  individual  who  is  the  victim  of  criminal  violence. 
The  treaties  have  been  silent  with  reference  to  offenses  committed 
by  foreigners  against  Americans.  Agreements  concluded  by  the 
territorial  sovereign  with  other  powers  have  commonly  served, 
however,  to  lodge  jurisdiction  in  the  authorities  of  the  State  to 
which  the  offender  owes  allegiance.  With  respect  to  crimes  com- 
mitted by  nationals  of  the  territorial  sovereign  and  directed  against 
American  citizens,  the  treaties  have  indicated  no  disposition  to 
grant  jurisdiction.^  Early  agreements  with  JMorocco  and  with 
Tripoli  provided,  however,  for  the  assistance  of  the  American 
consular  officer  at  the  trial  of  such  an  offender.^ 

In  civil  matters,  the  treaties  appear  generally  to  have  yielded 
jurisdiction  when  the  controversy  is  between  American  citizens. 
In  cases  involving  disputes  between  such  individuals  and  the  na- 
tionals of  other  powers  (enjoying  extraterritorial  privileges)  there 
has  usually  been  no  disposition  on  the  part  of  the  territorial 
sovereign  to  withhold  jurisdiction.^    China  has,  for  example,  agreed 

Treaties,  I,  1210 ;  Arts.  XX  and  XXI  of  treaty  with  Morocco  of  Sept.  16, 
1836,  id.,  1215-1216 ;  Art.  CXXIII  of  Algeciras  Convention  of  April  7,  1906, 
id.,  II,  2180;  Art.  IX  of  treaty  with  Tripoh  of  1796,  id.,  1786;  Arts.  XVIII 
and  XIX  of  treaty  with  Tripoh  of  June  4,  1805,  id.,  1792 ;  Art.  IV  of  treaty 
with  the  Ottoman  Empire  of  May  7,  1830,  id.,  1319 ;  protocol  with  the  Otto- 
man Empire  of  Aug.  11,  1874,  with  respect  to  the  right  to  hold  real  estate  in 
Turkey,  id.,  1344;  Art.  IX  of  convention  with  Siam  of  March  20,  1833,  id., 
1628 ;  Art.  II  of  treaty  with  Siam  of  May  29,  1856,  id.,  1630  ;  Art.  IX  of  treaty 
with  Muscat  of  Sept.  21,  1833,  id.,  I,  1230;  Arts.  XXI,  XXIV,  XXV  and 
XXIX  of  treaty  with  China  of  July  3,  1844,  id.,  202-204 ;  Arts.  XI,  XXVII 
and  XXVIII  of  treaty  with  China  of  June  18,  1858,  id.,  215  and  220  ;  Art.  IV 
of  treaty  with  China  of  Nov.  17,  1880,  id.,  240 ;  Art.  XVII  of  treaty  with 
China  of  Oct.  8,  1903,  id.,  269  ;  Art.  IX  of  convention  with  Borneo  of  June  23 
1850,  id.,  132 ;  Arts.  V  and  VI  of  treaty  with  Persia  of  Dec.  13,  1856,  id.,  II, 
1372-1373  ;  Art.  IV  of  treaty  with  Corea  of  May  22,  1882,  id.,  I,  336  ;  Art.  VI 
of  treaty  with  Japan  of  July  29,  1858,  id.,  1003 ;  Art.  IV  of  convention  with 
Japan  of  July  25,  1878,  id.,  i022  ;  Art.  XVIII  of  treaty  with  Japan  of  Nov.  22, 
1894  (providing  for  the  cessation  of  extraterritorial  jurisdiction),  id.,  1035; 
Art.  If  of  treaty  with  Zanzibar  of  July  3,  1886,  id.,  II,  1900  ;  treaty  with  Great 
Britain  of  Feb.  25,  1905,  providing  for  relinquishment  of  extraterritorial  rights 
in  Zanzibar,  id.,  I,  795. 

Extradition.  The  United  States  does  not  at  the  present  time  assert  the 
right  to  recover  by  its  own  authorities  American  citizens,  fugitive  from  its  ter- 
ritory, where  they  have  been  charged  with  crimes  and  have  sought  refuge  in 
countries  where  the  United  States  enjoys  extraterritorial  jurisdiction.  The 
surrender  of  euch  offenders  is  either  demanded  of  the  territorial  sovereign  in 
pursuance  of  extradition  treaties,  or,  in  the  absence  thereof,  is  requested  as  a 
matter  of  courtesy.  See  statement  in  Moore,  Dig.,  II,  633,  citing  Moore  on 
Extradition,  I,  100 ;  also  case  of  Paul  Stensland  in  Morocco,  1906,  For.  Rel. 
1906,  II,  1161-1164.  Compare  Case  of  Surratt,  Dip.  Cor.  1866,  II,  275,  277 ; 
id.,  1867,  II,  82 ;  also  relative  to  Case  of  Myers  and  Tunstall,  id.,  1862,  873. 

1  See,  for  example,  treaties  with  China  of  1844  and  1858.  That  of  1858 
permitted  arrests  to  be  made  bj'  American  as  well  as  native  authorities. 

2  See  treaties  with  Morocco  of  1787  and  1836 ;  with  Tripoh  of  1805. 

3  Mr.  Strobel,  Third  Asst.  Secy,  of  State,  to  Messrs.  Butler,  Stillman  and 

456 


CLASSES  OF  ACTIONS  [§  262 

that  the  exercise  of  such  a  right  in  such  cases  is  to  be  regulated 
by  a  treaty  between  the  United  States  and  the  outside  power.^ 
Persia  has  permitted  adjudication  before  the  "respective  consuls 
or  agents"  of  the  United  States  and  the  foreign  power .^  In  the 
absence  of  express  provision,  the  territorial  sovereign  has  com- 
monly acquiesced  in  the  exercise  of  jurisdiction  by  the  proper 
officials  of  the  State  to  which  the  defendant  belongs.^  In  con- 
troversies between  American  citizens  and  nationals  of  the  country 
where  extraterritorial  privileges  are  enjoyed,  the  treaties  have  in- 
dicated unwillingness  on  the  part  of  the  territorial  sovereign  to 
give  up  jurisdiction,  although  provision  has  frequently  been  made 
for  a  limited  participation  by  the  foreign  State  at  trials  conducted 
by  local  judicial  officers.  Ordinarily  no  distinction  has  been 
made  in  the  treaties  of  the  United  States,  between  cases  in  which 
an  American  citizen  is  plaintiff,  and  those  in  which  he  is  defendant. 
Turkey,  for  example,  according  to  the  treaty  of  1830,  agreed  to 
permit  the  American  dragoman  to  be  present  at  the  trial ;  and 
causes  in  which  the  amount  in  controversy  exceeded  five  hundred 
piasters  were  to  be  submitted  to  the  Sublime  Porte.^  Siam  has 
consented  that  disputes  arising  between  American  citizens  and 
Siamese  subjects  should  be  heard  by  the  consul  in  conjunction 

Hubbard,  Jan.  16,  1894,  195  MS.  Dom.  Let.  166,  Moore,  Dig.,  H,  602 ;  also 
statement  in  Moore,  Dig.,  H,  600. 

1  Treaties  of  1844,  and  1858.  See,  generally,  V.  K.  Wellington  Koo,  The 
Status  of  Aliens  in  China,  1912,  166-228;  Marcel  Baudez,  La  condition  juri- 
diqxie  des  etrangers  en  Chine,  1913,  60-201 ;  Georges  Soulie,  Les  droits  con- 
ventionnels  des  etrangers  en  Chine,  1916,  Chap.  IIL 

2  Treaty  of  1856. 

*  Papayanni  v.  Russian  Steam  Navigation  Co.,  2  Moore's  Privy  P.  C.  C. 
N.  S.  161,  Moore,  Dig.  II,  667. 

■*  With  respect  to  the  practice  which  prevailed  generally  in  Turkey,  see 
Philip  M.  Brown,  Foreigners  in  Turkey,  Their  Juridical  Status,  Chaps.  IIT 
and  IV,  and  documents  there  cited. 

Mr.  Cushing,  Attorney-General,  in  an  opinion,  October  23,  1855,  announced 
the  following  outline  of  the  system  of  extraterritorial  jurisdiction  then  pre- 
vailing in  Turkey : 

"1.  Turkish  tribunals  for  questions  between  subjects  of  the  Porte  and 
foreign  Christians. 

"2.    Consular  courts  for  the  business  of  each  nation  of  foreign  Christians. 

"3.  Trial  of  questions  between  foreign  Christians  of  different  nations  in 
the  consular  court  of  the  defendant's  nation. 

"4.  Mixed  tribunals  of  Turkish  magistrates  and  foreign  Christians  at 
length  substituted  by  common  consent  in  part  for  cases  between  Turks  and 
foreign  Christians. 

"5.  Finally,  for  causes  between  foreign  Christians,  the  substitution  also, 
at  length,  of  mixed  tribunals  in  place  of  the  separate  consular  courts,  this 
arrangement  introduced  at  first  by  the  legations  of  Austria,  Great  Britain, 
France,  and  Russia,  and  then  tacitly  acceded  to  by  the  legations  of  other 
foreign  Christians."     7  Ops.  Attys.-Gen.,  565,  569. 

The  foregoing  statement  was  incorporated  in  In.structions  to  the  Diplomatic 
OflBcers  of  the  United  States  (1897),  84-85,  and  is  given  in  Moore,  Dig.,  II, 

457 


§  262]         RIGHTS   AND   DUTIES   OF   .lURISDICTION 

with  the  proper  Siamese  officials.^  China  has  permitted  the  case 
to  be  tried  by  the  proper  official  of  the  nationahty  of  the  de- 
fendant, agreeing,  however,  that  the  properly  authorized  official  of 
the  plaintiffs  nationality  be  permitted  to  attend  the  trial,  enjoy 
facilities  for  watching  the  proceedings  in  the  interest  of  justice, 
have  the  right  to  examine  and  cross-examine  witnesses,  and  if 
dissatisfied  with  the  proceedings,  to  protest  against  them  in 
detail.-  Persia  has  permitted  the  presence  at  the  trial  of  an 
agent  of  the  United  States,  but  seems  to  have  lodged  juris- 
diction of  all  disputes  between  Persian  subjects  and  citizens  of  the 
United  States,  in  Persian  tribunals.'' 

(d) 

§  263.   Difficulties  with  Turkey.     Article  IV  of  Treaty  of 
1830. 

There  long  existed  a  controversy  between  the  United  States 
and  Turkey  respecting  the  precise  contents  of  the  text  of  Article 
IV  of  the  treaty  of  1830,  providing  for  extraterritorial  privileges, 
and  concerning  the  interpretation  of  that  portion  thereof  declaring 
that  the  exercise  of  jurisdiction  by  American  authority  should 
follow  "  the  usage  observed  towards  other  Franks."  ^    The  Turkish 

662.  See,  also,  Dainese  v.  Hale,  91  U.  S.  13 ;  Dainese  v.  United  States,  15  Ct. 
CI.  64;   Hinckley,  151-153. 

Concerning  the  establishment  and  jurisdiction  of  mixed  courts  in  Egypt, 
see  documents  in  Moore,  Dig.,  II,  722-727 ;   also  Hinckley,  153-158. 

In  December,  1906,  the  law  officer  of  the  Department  of  State  expressed 
the  opinion  that  jurisdiction  over  criminal  libel  committed  by  an  American 
citizen  in  Egypt,  was  stiU  vested  in  the  American  consular  courts,  and  had  not 
been  transferred  to  the  mixed  tribunals.  For.  Rel.  1907,11,  1080;  also  id., 
1076-1081. 

Great  Britain  ha\ang  in  1914  estabhshed  a  protectorate  over  Egypt,  which 
was  not  thereafter  regarded  by  the  former  as  in  any  sense  a  dependency  of 
Turkey,  undertook  to  make  careful  provision  for  a  revision  of  the  judicial 
system  of  the  country',  and  contemplated  the  ultimate  withdrawal  of  extra- 
territorial privileges  previously  enjoyed  by  virtue  of  the  Turkish  Capitula- 
tions. As  Prof.  Phihp  M.  Brown  has  well  observed:  "The  suppression  of 
the  regime  of  the  Capitulations  in  Egypt,  with  all  its  attendant  evils  of  special 
immunities  for  foreigners,  of  a  consequent  failure  to  insiu-e  an  even  justice 
for  all,  and  also  of  special  pohtical  pretensions  by  the  Powers  enjoying  these 
privileges,  is  a  logical  necessity  once  the  domination  of  Great  Britain  is  recog- 
nized." Editorial  comment,  "The  Egyptian  Capitulations",  Am.  J.,  XII, 
820,  822-823. 

1  Treaty  of  1856. 

2  Treatv  of  1880.  Concerning  the  mixed  court  at  Shanghai,  see  documents 
in  Moore," Dig.,  II,  652-€53,  F.  E.  Hinckley,  163-173;  For.  Rel.  1906,  I,  369- 
407. 

3  Treaty  of  1856. 

*  The  English  text  of  the  last  sentence  of  the  Article  as  contained  in  Mal- 
loy's  Treaties,  II,  1319,  is  as  follows :  "  Citizens  of  the  United  States  of  America, 
quietly  pursuing  their  commerce,  and  not  being  charged  or  convicted  of  any 

458 


DIFFICULTIES  WITH  TURKEY  [§  263 

Government  denied  that  the  English  text  was  a  correct  transla- 
tion of  the  original  Turkish  version,  contending  that  the  latter 
did  not  in  fact  contain  provision  for  the  trial  or  punishment  of  an 
American  citizen  by  his  minister  or  consul.^  That  Government 
did,  however,  in  1888,  submit  what  it  stated  to  be  a  correct  French 
translation  of  the  Turkish  text.^  In  1890,  Mr.  Blaine,  Secretary 
of  State,  offered  to  yield  the  right  of  trial,  and  to  accept  the  treat- 
ment accorded  to  certain  European  Powers,  providing  for  trial  by 
local  authorities,  in  the  presence  of  the  dragoman  of  the  American 
Legation,  retaining,  however,  the  right  to  punish  the  offender.^ 
The  Turkish  Government  declined  to  yield  that  right,  renewing 
in  substance  the  contention  that  the  reference  to  the  usage  to  be 
observed  towards  other  Franks  was  a  limitation  of  the  right 
granted,  the  scope  of  which  was  to  be  determined  by  the  practice 
of  the  several  Powers  in  1830,  and  that  they  did  not  then  claim 
the  right  to  punish  an  offender.'*  Mr.  Blaine  was  unwilling  to 
admit  that  the  treaty  of  1830  gave  more  than  was  at  that  time 
claimed  by  European  States.  He  declared,  however,  that  if, 
as  had  been  suggested,  the  treaty  had  inadvertently  granted  the 
right  to  punish,  and  had  thus  given  more  than  had  been  contem- 
plated by  the  grantor,  it  was  futile  to  deny  the  existence  of  the 
specific  grant.  He  was  likewise  unwilling  to  depart  from  the 
stand  taken  by  his  predecessors,  that  the  reference  to  the  usage 
observed  towards  other  Franks  was  explanatory  of,  rather  than  a 
limitation  upon,  what  was  yielded.     The  position  of  Mr.  Blaine 

crime  or  offence,  shall  not  be  molested ;  and  even  when  they  have  committed 
some  offence  they  shall  not  be  arrested  and  put  in  prison,  by  the  local  authori- 
ties, but  they  shall  be  tried  by  their  Minister  or  Consul,  and  punished  accord- 
ing to  their  offence,  following,  in  this  respect,  the  usage  observed  towards  other 
Franks." 

1  The  original  texts  of  the  treaty  were  in  the  French  and  Turkish  languages. 
An  agreement  was  signed  by  the  American  Charg^  d'Affaires  prior  to  the 
exchange  of  ratifications,  to  the  effect  that  the  Turkish  text  should  be  held 
the  correct  one  in  case  differences  should  arise  between  the  contracting  parties. 

Concerning  the  negotiation  of  the  treaty  and  the  dispute  relative  to  Article 
IV,  see  documents  in  Moore,  Dig.,  II,  668-714;  correspondence  in  For.  Rel. 
1905,  885-898,  with  respect  to  the  cases  of  Charles  Vartanian  and  H.  Afarian, 
especially  Mr.  Root,  Secy,  of  State,  to  Mr.  Leishman,  Oct.  19,  1905 ;  also 
F.  E.  Hinckley,  21-27. 

See,  also,  in  this  connection,  Andr6  Mandelstam,  La  justice  ottomane,  1911, 
154-174;   Philip  M.  Brown,  Foreigners  in  Turkey,  75-81. 

2  The  following  is  an  English  translation  thereof:  "American  citizens 
peaceably  attending  to  matters  of  commerce  shall  not  be  molested  without 
cause  so  long  as  they  shall  not  have  committed  any  offense  or  fault.  Even 
in  case  of  culpability  they  shall  not  be  imprisoned  bj'  the  judges  and  police 
agents,  but  they  shall  be  punished  through  the  agency  of  their  ministers  and 
consuls,  according  to  the  practice  observed  in  regard  to  other  Franks."  Mr. 
Blaine,  Secy,  of  State,  to  Mr.  Hirsch,  Minister  to  Turkev,  Dec.  22,  1890,  and 
contained  in  For.  Rel.  1900,  915,  917,  Moore,  Dig.,  II,  697,  701. 

3  Id.  "  Id. 

459 


§  263]         RIGHTS   AND    DUTIES   OF  JURISDICTION 

was  reaffirmed  by  Mr.  Hay,  Secretary  of  State,  in  1901.  The 
latter  adverted  to  the  fact  that  the  extraterritorial  right  in  question 
belonged  to  the  United  States  by  virtue  of  the  most-favored-nation 
clause  of  the  treaty,  and  that  that  right  was  given  by  the  Otto- 
man Porte  to  Belgium  by  treaties  of  1838  and  1862,  and  to  Portugal 
by  treaties  of  1843  and  1868.^ 

(e) 

§  264.   Legislation  of  the  United  States. 

The  legislative  action  of  a  State  by  means  of  which  it  fits  itself 
to  exercise  extraterritorial  jurisdiction,  and  incidentally  to  enable 
its  officers  to  exercise  judicial  functions  in  foreign  countries,  is  a 
matter  of  domestic  rather  than  of  international  law.^  Brief  atten- 
tion may,  however,  well  be  called  to  certain  aspects  of  the  laws 
of  the  United  States.^  Its  statutes  purport  to  be  applicable  to 
the  several  countries  with  which  treaties  have  been  or  may  be 
concluded,  and  also,  as  has  been  noted,  to  countries  not  inhabited 

1  Note  to  Mr.  Griscom,  American  Charge,  March  16,  1901,  For.  Rel.  1900, 
914,  Moore,  Dig.,  II,  713.  The  texts  of  the  treaties  to  which  Mr.  Hay  referred 
are  published  in  Noradounghian,  those  with  Belgium  of  1838  and  1862,  re- 
spectively, in  II,  243,  and  III,  160;  those  with  Portugal  of  1843  and  1868, 
respectively,  in  II,  354,  and  III,  263.  Concerning  the  practice  of  certain 
European  States  relative  to  the  trial  and  punishment  of  their  subjects  or 
citizens  in  Turkey,  see  communications  received  by  Department  of  State  in 
1891,  published  in  Moore,  Dig.,  II,  714-722;  also  F.  E.  Hinckley,  26-27. 

Adjustment  of  differences  with  Turkey  may  have  been  retarded  by  reason 
of  the  scope  of  demands  made  in  former  years  upon  its  Government.  In  1895 
Mr.  Olney,  Secy,  of  State,  went  so  far  as  to  assert  that  the  United  States  was 
entitled  to  be  represented  by  its  dragoman  at  every  stage  of  the  criminal  pro- 
ceedings against  a  Turkish  subject  charged  with  the  commission  of  an  offense 
against  an  American  citizen.  See  report  to  the  President,  Dec.  19,  1895, 
For.  Rel.  1895,  II,  1256,  1259,  Moore,  Dig.,  II,  666-667. 

^  Report  on  Citizenship  of  the  United  States  by  Messrs.  Scott,  Hill  and  Hunt, 
200. 

^  The  statutory  law  of  the  United  States  with  respect  to  the  powers  of 
ministers  and  consuls,  and  consular  courts,  is  embraced  in  Rev.  Stat.  §§  4083- 
4091,  U.  S.  Comp.  Stat.  1918,  §§  7633-7641;  Rev.  Stat.  §§  4097-4122,  U.  S. 
Comp.  Stat.  1918,  §§  7642-7667;  and  Rev.  Stat.  §§  4126-4130,  U.  S.  Comp. 
Stat.  1918,  §§  7672-7676. 

Provision  for  the  United  States  Court  for  China  was  made  by  the  Act  of 
June  30,  1906,  Chap.  3934,  34  Stat.  814,  U.  S.  Comp.  Stat.  1918,  §§  7687- 
7695.  Concerning  the  scope  of  the  jurisdiction  of  the  United  States  Court  for 
China,  see  Swayne  &  Hoyt  v.  Everett,  255  Fed.  71. 

By  an  Act  of  March  2,  1909,  Chap.  235,  35  Stat.  679,  U.  S.  Comp.  Stat. 
1918,  §  7393,  the  judicial  authority  of  the  Consul-General  of  the  United  States 
at  Shanghai  was  vested  in  and  to  be  exercised  by  a  vice-consul-general  of  the 
United  States.  By  an  Act  of  March  4,  1915,  Chap.  145,  38  Stat.  1122,  U.  S. 
Comp.  Stat.  1918,  §  7696  a,  the  judicial  authority  formerly  vested  in  the  Consul- 
General  at  Shanghai  and  transferred  to  the  Vice-Consul-General  was  vested 
in  and  to  be  exercised  by  a  vice-consul  at  Shanghai. 

See,  also,  in  this  connection  Moore,  Dig.,  II,  613-637,  and  documents  there 
cited;  also  Hinckley,  American  Consular  Jurisdiction  in  the  Orient,  41-69. 

460 


LEGISLATION  OF  THE  UNITED  STATES  [§  264 

by  civilized  peoples  or  recognized  by  any  treaties  with  the  United 
States.^  Specified  officers  are  clothed  with  power  to  exercise 
rights  of  jurisdiction.  Those  specified  are  the  ministers  and  con- 
suls of  the  United  States,  and  with  respect  to  China,  the  United 
States  Court  for  that  country.^  Jurisdiction  is  to  be  exercised 
according  to  the  laws  of  the  United  States,  in  so  far  as  they  are 
adapted  to  carrying  the  treaties  into  effect.  When  those  laws 
are  not  so  adapted,  or  are  deficient  in  their  provisions,  the  common 
law  and  the  law  of  equity  and  of  admiralty  are  declared  to  be  ap- 
plicable ;  and  if  none  of  the  foregoing  laws  appear  to  furnish  ap- 
propriate remedies,  the  ministers  are  empowered  to  make  regu- 
lations which,  it  is  said,  shall  have  the  force  of  law  to  supply  such 
defects.^  In  China,  the  power  to  make  such  regulations  is  lodged 
in  the  United  States  Court  for  that  country.  The  statutes  pro- 
vide that  a  consular  officer  acting  as  a  judge  may  be  assisted  by 
American  citizens  of  good  repute  who  shall  be  summoned  to  act 
as  associate  judges  in  the  more  important  criminal  and  civil  cases.'* 
This  provision  is  restricted  so  as  not  to  be  applicable  to  the  United 
States  Court  for  China.^  Elaborate  provision  is  made  for  appeals. 
The  duty  is  imposed  on  American  ministers  and  consuls  to  en- 
courage the  settlement  of  civil  controversies  by  mutual  agreement, 

1  Extraterritorial  Jurisdiction,  In  General,  supra,  §§  259-260. 

2  See  Rev.  Stat.  §  4084,  U.  S.  Comp.  Stat.  1918,  §  7634,  respecting  the 
jurisdiction  to  arraign  and  try  American  citizens  charged  with  "offenses  against 
law." 

Rev.  Stat.  §  4085,  U.  S.  Comp.  Stat.  1918,  §  7635,  invests  the  officers  "with 
all  the  judicial  authority  necessary  to  execute  the  provisions  of  such  treaties, 
respectively,  m  regard  to  civil  rights,  whether  of  propertv  or  person." 

According  to  Rev.  Stat.  §  4128,  U.  S.  Comp.  Stat.  1918,  §  7674,  judicial 
duties  devolve  upon  the  Secretary  of  State,  who  is  authorized  and  required 
to  discharge  the  same  if  at  any  time  there  be  no  minister  in  any  of  the  coun- 
tries previously  mentioned  in  the  title  of  the  statute. 

According  to  Rev.  Stat.  §  4109,  U.  S.  Comp.  Stat.  1918,  §  7654,  "The 
jurisdiction  of  such  ministers  in  all  matters  of  civil  redress,  or  of  crimes,  except 
in  capital  cases  for  murder  or  insurrection  against  the  governments  of  such 
countries,  respectively,  or  for  offenses  against  the  public  peace  amounting  to 
felony  under  the  laws  of  the  United  States,  shall  be  appellate  only  :  Provided, 
that  in  cases  where  a  consular  officer  is  interested,  either  as  party  or  witne.ss, 
such  minister  .shall  have  original  jurisdiction." 

^  Concerning  the  scope  of  the  power  to  make  regulations,  see  documents  in 
Moore,  Dig.,  II,  617-622. 

^  Apparently  the  summoning  of  associate  judges  depends  upon  the  opinion 
of  the  consular  officer  as  to  the  legal  difficulties  involved  in  the  particular  case. 
See  Rev.  Stat.  §§  4106-4107,  U.  S.  Comp.  Stat.  1918,  §§  7651-7652. 

5  See  §  5  of  Act  of  .lune  30,  1906,  34  Stat.  816,  U.  S.  Comp.  Stat.  1918, 
§  7691.  This  section  provides  also  that  the  procedure  of  the  Court  for  China 
shall  be  in  accordance,  so  far  as  practicable,  with  the  existing  procedure  pre- 
scribed for  consular  courts  in  China  in  accordance  with  the  Revised  Statutes 
of  the  United  States  :  "Provided,  however,  that  the  judge  of  the  said  United 
States  Court  for  China  shall  have  authority  from  time  to  time  to  modify  and 
::applement  said  rules  of  procedure." 

461 


§  264]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

or  by  the  submission  of  them  to  the  decision  of  referees  according 
to  a  specified  procedure.^ 

(f) 

§  265.   Tendencies  towards  the  Relinquishment  of  Extra- 
territorial Jurisdiction. 

The  compelling  of  a  country  by  any  process  to  consent  to  the 
exercise  within  its  territory  of  judicial  functions  by  foreign  judges 
and  pursuant  to  the  requirements  of  a  foreign  code  necessarily 
signifies  that  the  territorial  sovereign  is  regarded,  at  least  for  the 
time  being,  as  incapable  of  performing  itself  those  duties  of  juris- 
diction which  are  required  of  every  independent  State,  and,  there- 
fore, that  it  has  not  reached  the  stage  where  it  is  to  be  treated  for 
all  purposes  as  a  full-fledged  member  of  the  family  of  nations. 
Countries  yielding  such  jurisdiction  have  been  alert  to  perceive 
this,  and  to  endeavor  to  rid  themselves  of  such  a  mark  of  inequality ; 
and  this  has  been  true,  whether  or  not  their  existing  judicial  sys- 
tems were  essentially  inapplicable  to  aliens  and  their  affairs,^  or  in- 
sufficient to  render  justice  with  respect  to  them. 

For  these  reasons  the  progress  of  civilization  and  the  develop- 
ment of  political  communities  into  entities  entitled  to  claim  the 
full  benefits  of  statehood,  have  marked  a  gradual  emancipation 
of  countries  yielding  extraterritorial  privileges  from  such  a  token 
of  inequality.  The  United  States  has  long  understood  and  encour- 
aged the  aspirations  of  foreign  peoples  endeavoring,  in  the  course 
of  their  normal  advancement,  to  establish  judicial  systems  calcu- 
lated to  assure  the  administration  of  justice  for  resident  aliens.^ 

1  Rev.  Stat.  §  4098,  U.  S.  Comp.  Stat.  1918,  §  7643.  That  Congress  is  not 
obliged  by  the  Constitution  of  the  United  States  to  extend  to  an  American 
citizen  accused  of  crime  in  a  country  where  extraterritorial  jurisdiction  is  ex- 
ercised, the  same  guarantees  that  he  would  enjoy  if  prosecuted  in  the  United 
States,  is  established  by  the  case  of  In  re  Ross,  140  U.  S.  453. 

2  On  Sept.  9,  1914,  the  Turkish  Government  announced  to  the  ambassadors 
of  the  several  Powers  at  Constantinople,  a  decision  to  abolish  or  suppress  the 
Capitulations  and  the  rights  of  extraterritorial  jurisdiction  thereunder  on 
Oct.  1,  following.  The  American  Ambassador  protested,  declaring  that 
the  United  States  did  not  recognize  the  right  of  the  Porte  to  abrogate  the 
treatv  arrangements  by  a  unilateral  act,  and  made  formal  reservation  of 
American  rights  in  the  premises.  See  Second  Russian  Orange  Book,  1914, 
No.  43,  The  Times  (London)  Doc.  Hist,  of  the  War,  IX  (diplomatic,  part  3), 
p.  269;   also  Rev.  Gen.,  XXI,  487-493;   Am.  J.,  VIII,  873. 

3  See  provisions  of  Act  of  March  23, 1874,  Chap.  62,  18  Stat.  23,  U.  S.  Comp., 
Stat.  1918,  §  7670,  contemplating  the  suspension  of  the  exercise  of  judicial 
functions  in  certain  countries  upon  the  receipt  by  the  President  of  satisfactory 
information  that  there  were  organized  therein  local  tribunals  on  a  basis  likely 
to  secure  to  citizens  of  the  United  States  the  same  impartial  justice  which  they 
then  enjoyed  by  virtue  of  the  exercise  of  judicial  functions  by  American  oflficers. 

462 


TERRITORY    UNDER    TURKISH    RULE  [§  265 

In  certain  places  the  requisite  improvement  has  been  effected  as 
an  incident  of  the  establishment  of  a  protectorate  under  an  en- 
lightened power,  such  as  Great  Britain  or  France ;  ^  in  others,  it 
has  been  achieved  in  the  course  of  the  normal  exercise  of  rights  of 
political  independence.^ 

In  the  case  of  territory  under  Turkish  rule  and  incidentally 
subject  to  Mohammedan  law,  it  may  be  doubted  whether  the  old 
reasons  calling  for  extraterritorial  privileges  are  no  longer  applicable. 
While  it  may  be  true  that  the  full  measure  of  rights  claimed  and 
enjoyed  by  foreign  powers  in  virtue  of  the  Capitulations  ought 
not  still  to  be  maintained,  it  is  probably  equally  true  that  Turkish 
tribunals,  as  well  as  any  code  evolved  from  the  theory  of  the  Koran, 
still  remain  unadapted  to  the  administration  of  criminal  justice 
with  respect  to  non-INIussulmans.  It  may  be  acknowledged,  how- 
ever, that  in  any  territorial  area  under  Turkish  sway  the  nature 
and  scope  of  extraterritorial  jurisdiction  with  respect  to  contro- 

Art.  XV  of  the  treaty  between  the  United  States  and  China  of  Oct.  3,  1903, 
declares:  "The  Government  of  China  having  expressed  a  strong  desire  to 
reform  its  judicial  system  and  to  bring  it  into  accord  with  that  of  Western 
nations,  the  United  States  agrees  to  give  every  assistance  to  such  reform  and 
will  also  be  prepared  to  relinquish  extra-territorial  rights  when  satisfied  that 
the  state  of  the  Chinese  laws,  the  arrangements  for  their  administration, 
and  other  considerations  warrant  it  in  so  doing."     Malloy's  Treaties,  I,  269. 

See,  also,  V.  K.  Wellington  Koo,  The  Status  of  Aliens  in  China,  354-356. 

1  By  Art.  142  of  the  treaty  of  peace  of  June  28,  1919,  Germany,  havinj; 
recognized  the  French  Protectorate  in  Morocco,  agreed  to  accept  all  the  con- 
sequences of  its  establishment,  and  thereby  renounced  the  regime  of  the 
Capitulations  therein,  such  renunciation  taking  effect  from  Aug.  3,  1914.  By 
Art.  147,  Germany  professed  to  recognize  the  Protectorate  proclaimed  by 
Great  Britain  over  Egypt  on  Dec.  18,  1914,  and  renounced  the  regime  of 
the  Capitulations  in  Egj^pt,  such  renunciation  taking  effect  from  Aug.  4, 
1914. 

See  also  Arts.  97  (Morocco)  and  102  (Egypt)  of  the  treaty  of  peace  with 
Austria  of  Sept.  10,  1919. 

2  This  was  true  with  respect  to  Japan.  Concerning  the  full  recognition  of 
the  right  of  Japan  to  be  rid  of  every  obligation  to  permit  extraterritorial  juris- 
diction to  be  exercised  within  its  domain,  see  President  McKinley,  Annual 
Message,  Dec.  5,  1899,  For.  Rel.  1899,  XXIV-XXV;  documents  in  Moore, 
Dig.,  II,  654-661;  Art.  VI,  treatv  of  1858,  and  Art.  XVIII,  treaty  of  1894, 
Malloy's  Treaties,  II,  1003  and  1035,  respectively.  The  treaty  of  1894  was 
superseded  by  that  of  Feb.  21,  1911,  Charles'  Treaties,  77. 

See  convention  between  Denmark  and  Siam  of  March  15,  1913,  providing 
for  the  relinquishment  of  Danish  consular  jurisdiction  in  Siam,  Am.  J.,  VIII, 
Supp.,  169.  By  Art.  135  of  the  treaty  of  peace  of  June  28,  1919,  Germany 
recognized  that  all  rights  of  extraterritorial  jurisdiction  in  Siam  were  termi- 
nated as  from  Julv  22,  1917.  See  also  Art.  110  of  the  treaty  of  peace  with 
Austria  of  Sept.  10,  1919. 

The  great  progress  of  Siam,  and  the  increasing  recognition  thereof  by 
foreign  States,  such  as  the  United  States  (in  whose  behalf  a  treaty  was  signed 
in  Deceniber,  1920,  contemplating,  as  has  been  noted,  supra,  §"33,  the  ulti- 
mate relinquishment  of  American  jurisdictional  privileges  in  Siamese  terri- 
tory), is  believed  to  have  been  due  in  part  to  the  constructive  work  of 
American  and  British  advisors. 

463 


§  265]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

versies  of  every  character  should  be  definitely  fixed  by  general 
agreement.^ 

It  may  be  observed  that  a  potent  means  of  enabling  a  country 
to  reach  that  stage  where  it  may  fairly  claim  the  benefits  and  the 
capacity  to  fulfill  the  corresponding  burdens  of  full  membership 
in  the  family  of  nations,  is  to  cooperate  with  rather  than  to  retard 
its  efforts  to  establish  a  judicial  system  designed  to  administer 
justice  with  respect  to  foreigners  as  well  as  nationals.  Moreover, 
as  a  practical  means  of  furthering  such  efforts,  the  territorial 
sovereign  should  be  permitted  and  encouraged  at  an  early  moment 
to  exercise  judicial  functions  in  civil  matters  pertaining  to  foreigners, 
just  as  far  as  may  be  compatible  with  the  protection  of  their  in- 
terests. The  exercise  of  civil  jurisdiction  must  afford  valuable 
experience  in  fitting  a  country  to  fulfill  the  more  diflScult  task  of 
ascertaining  the  guilt  of  persons  charged  with  the  commission  of 
crimes,  and  of  imposing  what  the  world  at  large  would  regard  as 
reasonable  penalties  upon  individuals  justly  convicted. 

2 
DUTIES   OF   JURISDICTION 


§  266.    Maintenance   of   a    Judicial    System.     An   Inter- 
national Standard. 

As  the  territorial  sovereign  is  in  legal  contemplation  supreme 
within  its  own  domain,  and  supposedly  capable  of  enforcing  obe- 
dience to  its  will  therein,  as  well  as  the  sole  possessor  of  the  right 
to  deal  with  foreign  affairs,  there  is  imposed  upon  it  the  corre- 
sponding obligation  to  do  justice,  or  to  exercise  what  may  be  called 
a  duty  of  jurisdiction  with  respect  to  matters  pertaining  to  the 
outside  world. 

^  According  to  Art.  136  of  the  Turkish  treaty  of  peace  signed  at  Sevres, 
Aug.  10,  1920,  a  Commission  of  four  members,  to  be  appointed  by  the  British 
Empire,  France,  Italy  and  Japan,  respectively,  was  to  be  established  within 
three  months  from  the  coming  into  force  of  the  treaty,  and  was  to  prepare, 
with  the  assistance  of  technical  experts  representing  the  other  capitulary 
Powers,  Allied  or  neutral  (which  with  that  object  were  each  to  be  invited  to 
appoint  an  expert),  a  scheme  of  judicial  reform  to  replace  the  existing  capitu- 
lary system  in  judicial  matters  in  Turkey.  That  Commission  might,  it  was 
declared,  recommend,  after  consultation  with  the  Turkish  Government,  the 
adoption  of  either  a  mixed  or  an  unified  judicial  system.  It  was  provided 
that  the  Turkish  Government  should  accept  the  new  system  prepared  by  the 
Commission  and  submitted  to  the  Allied  and  neutral  Governments  concerned, 
upon  the  approval  of  the  scheme  by  the  Principal  Allied  Powers  and  upon 
notification.     British  Treaties  Series  No.  11  (1920),  Cmd.  964,  p.  32. 

The  Treaty  remains  as  yet  unratified. 

464 


MAIKTENANCE  OF  A  JUDICIAL  SYSTEM         [§  266 

A  universal  demand  that  the  national  of  a  State  receive  pro- 
tection in  whatsoever  country  he  is  permitted  to  enter  or  hold 
property,  calls  for  the  local  administration  of  justice  in  his  behalf.^ 
In  his  own  right,  he  doubtless  possesses  no  claim  to  special  con^ 
sideration.  His  relation  to  the  territorial  sovereign  as  a  resident 
within  its  domain  does  not  appear  to  differ  from  that  of  the  na- 
tional; it  is  essentially  domestic.  Through  his  connection,  how->^ 
ever,  with  the  State  of  his  allegiance,  he  finds  himself  in  a  different 
position.  That  State  will  generally  assert  that  there  is  due  to  it  -^ 
an  obligation  on  the  part  of  the  territorial  sovereign  to  accord  him 
a  certain  measure  of  justice.  As  that  obligation  is  of  an  inter- 
national character,  its  existence  and  scope  may  be  said  to  depend 
upon  the  law  of  nations ;  and  the  resident  alien  so  becomes  the 
beneficiary  of  what  that  law  prescribes.^ 

There  is  also  a  demand  that  the  public  agencies  or  representa- 
tives of  a  State,  as  well  as  its  nationals,  be  accorded  protection 
by  the  foreign  territorial  sovereign,^  and  that  even  the  territory 
of  such  State  be  protected  from  the  operation  of  injurious  forces 
set  in  motion  against  it  within  the  domain  of  another.^ 

The  precise  mode  by  which  a  State  endeavors  to  do  justice  is    j! 

*  See  Resolution  of  the  Institute  of  International  Law,  of  Sept.  10,  1900, 
respecting  the  responsibility  of  States  by  reason  of  damages  suffered  by  aliens 
in  case  of  riot,  insurrection  or  civil  war,  Anmiaire,  XVIII,  254-256,  J.  B.  Scott, 
Resolutions,  159-161,  Moore,  Dig.,  VI,  953-954.  See,  also,  Westlake,  2  ed., 
I,  108-111;  Hall,  Higgins'  7  ed.,  §  11. 

2  D.  Anzilotti  in  Rev.  Gen.,  XIII,  5  and  285;  L.  de  Bar  in  Rev.  Droit  Int., 
2  ser.,  I,  464 ;  Report  and  plan  of  resolutions  for  consideration  of  the  Institute 
of  International  Law,  by  E.  Brusa,  1898,  Annuaire,  XVII,  96-137 ;  Proceed- 
ings of  the  Institute  and  Resolution  adopted  Sept.  10,  1910,  Annuaire,  XVIII, 
233  and  254.  (A  translation  of  the  resolutions  is  contained  in  Moore,  Dig., 
VI,  953.)  See,  also,  D.  Anzilotti,  Teoria  generate  della  responsabilitd  dello 
stato  nel  dirilto  intemazionale,  Florence,  1902. 

'  It  will  be  seen  that  officers  of  a  foreign  State,  such  as  consular  representa- 
tives and  other  agents  thereof,  in  their  official  capacity,  frequently  have  re- 
course to  the  courts  in  the  country  to  which  they  are  accredited.  Oftentimes, 
moreover,  a  foreign  State  itself  finds  it  necessary  and  desirable,  through  an 
appropriate  agency,  to  become  itself  a  litigant  before  a  domestic  tribunal. 
In  such  case  its  rights  are  unaffected  by  changes  in  its  form  of  government. 
The  Sapphire,  11  Wall.  164. 

*  The  criminal  or  hostile  acts  which  a  State  may  be  called  upon  to  suppress 
are  varied.  Indians  or  other  marauders  may  attempt  predatory  incursions 
into  adjacent  foreign  territory;  revolutionists  may  similarly  force  their  con- 
test for  the  reins  of  government  beyond  the  limits  of  the  national  domain ; 
the  territory  of  a  neutral  State  may  be  used  as  a  strategic  base  of  operations 
against  a  belligerent ;  the  money  and  seals  of  a  friendly  power  may  be  counter- 
feited. The  territorial  sovereign  in  its  work  of  suppression  may  find  that  the 
exercise  of  power  for  purposes  of  control  is  to  be  adequately  and  conveniently 
effected  through  the  civil  rather  than  the  military  arm  of  the  government. 
Not  infrequently,  however,  the  use  of  military  and  naval  force  is  necessitated. 

See  correspondence  between  the  United  States  and  IVIexico,  in  relation 
to  border  troubles  between  the  two  States,  contained  in  For.  Rel.  1911,  348, 

465 


§  266]         RIGHTS   AND   DUTIES   OF   JURISDICTION 

doubtless  internationally  unimportant,  so  lono;  as  the  attempt  is 
successful.  As  a  practical  means,  however,  of  fulfilling  its  duty 
towards  the  outside  world,  the  territorial  sovereign  finds  itself 
obliged  to  have  recourse  to  a  judicial  system  and  valiantly  to 
maintain  it ;  for  by  no  other  means  is  it  able  under  normal  cir- 
cumstances to  meet  the  requirements  of  the  law  of  nations.  Even 
the  military  arm  of  the  government  appears  to  offer  no  adequate 
substitute  in  seasons  of  peace  for  civil  tribunals.^ 

The  value  of  a  judicial  system  with  respect  to  foreign  powers 
depends  upon  the  means  which  it  affords  them  and  their  nationals 
to  obtain  redress  in  local  forums.  The  efficacy  of  those  means  is 
always  to  be  tested  by  the  standard  which  the  family  of  nations  has 
fixed ;  and  the  evidence  of  that  standard  is  to  be  found  in  the 
practice  of  enlightened  States.^ 

§  267.   The  Same. 

The  individual  State  cannot  itself  alter  the  international  stand- 
ard. The  freedom  of  a  State  in  adopting  a  form  of  government 
of  its  own  choice,  or  in  framing  a  constitution  of  its  own  devising, 
is  always  subject  to  the  requirement  that  the  territorial  sovereign 
shall  not  thereby  render  itself  impotent  to  fulfill  acknowledged 
duties  of  doing  justice  with  respect  to  foreign  powers.^  If  a  State, 
acting  designedly,  renders  itself  deficient  in  this  regard,  it  not  only 
fails  to  escape  responsibility,  but  also,  by  reason  of  its  conduct, 
invites  the  intervention  of  aggrieved  States. 

and  following;  also  President  Taft,  Annual  Message,  Dec.  7,  1911,  id.,  XI- 
XVI.  CJ.  also  communication  of  Mr.  Lansing,  Secy,  of  State,  to  the  Secy, 
of  Foreign  Relations  of  the  de  facto  Government  of  Mexico,  June  20,  1916,  with 
respect  to  conditions  calling  for  the  pursuit  of  Villa,  Am.  J.,  X,  Supp.,  211. 

^  At  least  such  is  the  profound  conviction  in  States  such  as  the  United  States 
where  Anglo-American  theories  prevail,  and  where  trial  by  jury  is  firmly 
planted  in  the  fundamental  law. 

"  Declared  Mr.  Root,  President  of  the  American  Society  of  International 
Law,  April  28,  1910:  "The  rule  of  obligation  is  perfectly  distinct  and  settled. 
Each  country  is  bound  to  give  to  the  nationals  of  another  country  in  its  terri- 
tories the  benefit  of  the  same  laws  the  same  administration,  the  same  pro- 
tection, and  the  same  redress  for  injury  which  it  gives  to  its  own  citizens,  and 
neither  more  nor  less;  provided  the  protection  which  the  country  gives  to 
its  own  citizens  conforms  to  the  established  standard  of  civilization. 

"There  is  a  standard  of  justice  very  simple,  very  fundamental,  and  of  such 
general  acceptance  by  all  civilized  countries  as  to  form  a  part  of  the  inter- 
national law  of  the  world.  The  condition  upon  which  any  country  is  entitled 
to  measure  the  justice  due  from  it  to  an  alien  by  the  justice  which  it  accords 
to  its  own  citizens  is  that  its  system  of  law  and  administration  shall  conform 
to  this  general  standard.  If  any  country's  system  of  law  and  administration 
does  not  conform  to  that  standard,  although  the  people  of  the  country  may  be 
content  and  compelled  to  live  under  it,  no  other  country  can  be  compelled  to 
accept  it  as  furnishmg  a  satisfactory  measure  of  treatment  to  its  citizens." 
Proceedings,  Am.  Soc.  Int.  Law,  IV,  16,  20-21. 

'  Robert  Lansing,  Proceedings,  Am.  Soc.  Int.  Law,  II,  44,  45. 

466 


RELATION    TO    STATE    ACTS  [§  267 

The  United  States,  in  which  the  power  to  deal  with  the  outside 
world  is  lodged  exclusively  in  the  Federal  Government,  could  not 
avoid  responsibility  for  the  neglect  of  a  duty  of  jurisdiction  to- 
wards a  foreign  power,  occurring  within  the  bounds  of  one  of  the 
States  of  the  Union,  by  showing,  if  such  were  the  fact,  that  by  the 
Constitution,  the  right  and  power  to  do  justice  in  the  particular 
matter  were  vested  in  the  government  of  the  commonwealth 
within  whose  domain  there  had  been  a  denial  of  justice.^  Nor 
could  the  United  States  fairly  deny  responsibility  for  the  conse- 
quences of  neglect  in  the  performance  of  duties  of  jurisdiction 
with  respect  to  aliens  resident  in  a  State  of  the  Union  by  reason 
of  the  failure  of  Congress  to  enact  laws  necessary  to  insure  per- 
formance.^ Lack  of  legislation  which  may  be  requisite  to  enable 
a  State  to  fulfill  its  international  obligations,  howsoever  arising, 
never  affords  a  defense  in  public  law  for  the  consequences  of  such 
inaction.^ 

It  cannot  be  admitted  that  a  State  may  by  local  enactment  i 
lessen  the  scope  of  its  duty  of  jurisdiction,  inasmuch  as  it  is  al- 
ways fixed  by  international    law.     Thus   the   effort   to   restrict 
by   local  legislation  the  measure  of  justice  to  be  accorded  the 
resident  alien,''  or  the  right  of  his  State  to  interpose  in  his  be- 

^  Art.  IV  of  the  Resolution  adopted  by  the  Institute  of  International  Law 
September  10,  1900,  declares : 

"The  government  of  a  federal  state  composed  of  several  small  states  repre- 
sented by  it  from  an  international  point  of  view,  can  not  invoke,  in  order  to 
escape  the  responsibility  incumbent  on  it,  the  fact  that  the  constitution  of  the 
federal  state  confers  upon  it  no  control  over  the  several  states,  or  the  right  to 
exact  of  them  the  satisfaction  of  their  own  obligations."  Annuaire,  XVIII, 
255,  Moore,  Dig.,  VI,  954;   also  J.  B.  Scott,  Resolutions,  160. 

Compare  Mr.  Evarts,  Secy,  of  State,  to  the  Chinese  Minister,  Dec.  30,  1880, 
For.  Rel.  1881,  319,  Moore,  Dig.,  VI,  820. 

2  See  President  Harrison,  Annual  Message,  Dec.  9,  1891,  For.  Rel.  1891,  v, 
Moore,  Dig.,  VI,  840. 

Concerning  the  need  of  legislation  by  Congress  to  enable  the  Federal  Gov- 
ernment to  perform  international  obligations  with  respect  to  aliens,  see  also 
President  McKinley,  Annual  Message,  Dec.  5,  1899,  For.  Rel.  1899,  xxii-xxiv, 
Moore,  Dig.,  VI,  846;  President  Roosevelt,  Annual  Message,  Dec.  3,  1906, 
For.  Rel.  1906,  I,  xliii;  President  Taft,  remarks  before  Am.  Soc.  Int.  Law, 
April  29,  1910,  Proceedings,  Am.  Soc,  IV,  44-45;  Charles  H.  Watson,  "Need 
of  Federal  Legislation  in  Respect  to  Mob  Violence  in  Cases  of  Lynching  of 
Aliens",  Yale  Law  J.,  XXV,  561. 

^  Mr.  Root,  Proceedings,  Am.  Soc,  IV,  16,  25.  Also,  Claims  Arising  from 
Mob  Violence,  infra,  §§  290-292. 

Compare  Mr.  Evarts  Secy,  of  State,  to  Sir  E.  Thornton,  British  Minister, 
March  7,  1881,  MS.  Notes  "to  Great  Britain,  XVIII.  461,  Moore,  Dig.,  VI, 
663;  see,  also,  distinction  made  by  Mr.  Fish,  Secv.  of  State,  to  Mr.  Partridge, 
Minister  to  Brazil,  No.  141,  March  5,  1875,  MS.  Inst.  Brazil,  XVI,  455,  Moore, 
Dig.,  VI,  815. 

"  See,  for  example,  Venezuelan  decrees  of  1873,  For.  Rel.  1883,  917-918, 
Moore,  Dig.,  VI,  318;  also  concerning  these  decrees,  Mr.  Fish,  Secv.  of  State, 
to  Mr.  Pile,  Minister  to  Venezuela,  No.  63,  May  29,  1873,  United  States  and 

467 


§  267]         RIGHTS  AND    DUTIES   OF   JURISDICTION 

half/  is  commonly  protested  against  by  the  country  whose 
national  is  thus  adversely  affected.  The  United  States  will  not, 
for  example,  admit  that  the  failure  of  an  American  citizen  to  be 
matriculated  in  accordance  with  the  provisions  of  a  statute  of  a 
foreign  State  where  he  may  reside,  deprives  him  of  the  protection 
of  his  own  government,  or  lessens  its  right  to  interpose  in  his 
behalf.2 

It  is  frequently  asserted  that  the  alien  is  entitled,  with  respect 
to  the  protection  of  his  life  and  property,  to  no  greater  safeguards, 
and  to  no  better  means  of  redress  by  judicial  process,  than  are  ac- 
corded nationals  of  the  State  where  he  finds  himself.^  This  con- 
tention may  be  due  to  the  circumstance  that  in  the  territories 
of  enlightened  States,  such  individuals  are  commonly  able  to  ob- 
tain justice  whether  as  plaintiffs  or  defendants,  and  in  both  civil 
and  criminal  causes.  It  may  be  partly  attributable  also  to  the 
habit  of  States  in  demanding  by  treaty  that  their  respective 
nationals  be  placed  upon  an  equal  footing  with  those  of  the 
country  of  residence  in  what  relates  to  the  protection  of  life  and 
property  within  its  borders.  Thus  it  happens  that  the  true  test 
of  the  extent  of  the  duty  of  the  territorial  sovereign  oftentimes 
disappears  from  view.  Whenever,  on  the  other  hand,  the  local 
judicial  system  serves  to  work  injustice  to  the  national  of  the 
territorial  sovereign  by  failing  to  accord  him  that  protection 
which  enlightened  States  habitually  place  within  the  reach  of 
their  own  citizens,  and  which,  therefore,  it  is  believed  that  he  should 

Venezuelan  Claims  Commission  (1895),  451,  Moore,  Dig.,  VI,  319;  Mr. 
Frelinghuvsen,  Secv.  of  State,  to  Mr.  Baker,  Minister  to  Venezuela,  No.  292, 
April  18,  1884,  Senate  Ex.  Doc.  143,  50  Cong.,  1  Sess.,  81,  85,  Moore,  Dig.,  VI, 
320. 

1  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Soteldo,  Venezuelan  Minister, 
April  4,  1884,  For.  Rel.  1884,  599,  Moore,  Dig.,  VI,  321;  Mr.  Frelinghuysen, 
Secv.  of  State,  to  Mr.  Morgan,  Minister  to  Mexico,  No.  732,  Feb.  17,  1885, 
For.  Rel.  1885,  575,  Moore,  Dig.,  VI,  312. 

"^  See,  for  example,  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Morgan,  Minister 
to  Mexico,  Mav  26,  1885,  MS.'  In.st.  Mexico,  XXI,  297,  Moore,  Dig.,  VI,  313; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Howe,  May  8,  1885,  155  MS.  Dom.  Let. 
323,  Moore,  Dig.,  VI,  313;  also,  generally,  documents  in  Moore,  Dig.,  VI, 
309-324. 

3  Mr.  Butler,  Atty.-Gen.,  3  Ops.  Attys.-Gen.,  254,  Moore,  Dig.,  IV,  2;  Mr. 
Gushing,  Attv.-Gen.,  7  Ops.  Attys.-Gen.,  229,  Moore,  Dig.,  IV,  7 ;  Mr.  Webster, 
Secv.  of  State,  to  Mr.  Calderon  de  la  Barca,  Spanish  Minister,  Nov.  13,  1851, 
6  Webster's  Works,  .509,  511,  Moore,  Dig.,  VI,  812;  Mr.  Evarts.  Secy,  of 
State,  to  the  Chine.se  Minister,  Dec.  30,  1880,  For.  Rel.  ISSl,  319,  Moore, 
Dig.,  VI,  820.  822;  Mr.  Hav,  Secy,  of  State,  to  Baron  Riedl,  Austro-Him- 
garian  Charge  d' Affaires  ad  'interim,  Feb.  4,  1899,  For.  Rel.  1898,  152,  155, 
Moore,  Dig.,  VI,  874,  879. 

See,  also,  Wadsworth.  Commissioner,  in  case  of  Salvador  Prats,  Mexican- 
American  Commission,  Convention  of  July  4,  1868,  Moore,  Arbitrations,  III, 
2886,  2888;   Opinion  of  Palacio,  Commissioner,  in  same  case,  id.,  2892,  2893. 

468 


MEANS    OF    REDRESS   FOR   ALIENS  [§  267 

enjoy,  it  becomes  apparent  that  the  duty  of  jurisdiction  is  to  be 
tested  by  a  different  standard.     Thus  if  the  ahen  suffers  absolute  | 
wrong  through  the  operation  of  local  laws  or  procedure,  although 
applied  without  discrimination,  the  State  of  his  allegiance  will  i 
raise  its  voice  in  protest.^     Whenever  it  does  so,  the  insufficiency   | 
of  the  domestic  standard  is  emphasized. 

The  alien  may  no  doubt  be  the  object  of  some  discrimination  | 
without  necessarily  imputing  to  the  country  of  his  residence  a 
violation  of  international  law.  This  is  true  when  it  appears  that, 
notwithstanding  the  discrimination,  he  is  able  to  secure  such  a 
measure  of  justice  as  States  commonly  require  and  obtain  for  their 
nationals  resident  abroad.  The  provision  in  the  French  law  that 
an  alien  shall  give  security  for  costs  in  a  suit  brought  against  a 
citizen  is  typical.^  So  long  as  foreign  powers  acquiesce,  the  dis- 
crimination cannot  be  regarded  as  internationally  illegal. 

The  alien  may,  however,  by  reason  of  his  foreign  nationality ,< 
need  and  actually  receive  a  means  of  redress  other  than  that  ac-\ 
corded  the  national  of  the  territorial  sovereign.     The  tribunals 
and  processes  found  adequate  for  the  exercise  of  jurisdiction  with 

1  See,  for  example,  Baron  von  Riedenau  of  the  Austro-Hungarian  Legation, 
to  Mr.  Hay,  Secy,  of  State,  For.  Rel.  1899,  31,  35 ;  Mr.  Bavard,  Secy,  of  State, 
to  Mr.  Buck,  Minister  to  Peru,  No.  85,  Aug.  24,  1886,  MS.  Inst.  Peru,  XVII, 
231,  Moore,  Dig.,  VI,  252;  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Lowell, 
Minister  to  England,  April  25,  1882,  For.  Rel.  1882,  230-233,  Moore,  Dig., 
VI,  275;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Dougherty,  Charge,  No.  430, 
Jan.  5,  1891,  MS.  Inst.  Mexico,  XXIII,  14,  21,  Moore,  Dig.,  VI,  802,  803. 

2  Art.  16  of  the  Code  Civil,  as  amended  by  the  law  of  March  5,  1895,  Dalloz, 
Codes  Annates,  I.  199. 

See,  also,  J.  Brissaud,  History  of  French  Private  Law,  translated  by  Rapelje 
Howell,  Continental  Legal  History  Series,  §  582 ;  James  Barclay,  Proceedings, 
Am.  Soc,  V,  57;  Joseph  H.  Beale,  Harv.  Law  Rev.,  XXVI,  193' and  283;  Mr. 
Adee,  Acting  Secv.  of  State,  to  Signor  Carignani,  Italian  Charge,  Oct.  10, 
1901,  For.  Rel.  1901,  310. 

"We  find  in  continental  Europe  a  good  deal  of  diversity  in  regard  to  the 
furnishing  of  indemnity  jw^icafum  solvi.  Some  nations,  among  which  we  find 
Italy,  Portugal,  Denmark  and  a  few  smaller  ones,  have  abolished  it  entirely. 
Theltahan  Civil  Code  of  1865,  Article  8,  provides  that :  'the  alien  is  admitted 
to  the  enjoyment  of  the  civil  rights  accorded  to  citizens.'  Italy  in  this  respect, 
as  in  many  other  matters  relating  to  private  law,  is  in  the  forefront  of  civiliza- 
tion. Countries  like  Belgium  and  Luxemburg  follow  the  French  rule,  as  does 
Holland.  Russia  exacts  indemnity  judicatum  solvi  except  in  the  case  where 
the  plaintiff  is  solvent.  Switzerland,  like  England  and  the  Uriited  States, 
does  not  discriminate  between  its  citizens  and  aliens,  but  requires  all  non- 
residents to  furnihh  security.  Germany  bases  its  law  entirely  upon  the  system 
of  legislative  reciprocity.  The  German  judge  must  ascertain  the  law  re- 
garding security  prevailing  in  the  country  to  which  the  plaintiff  belongs. 
Austria,  sinse  1898,  has  adopted  the  same  system,  as  has  been  done  by  Spain 
and  Hungary.  All  these  countries,  however,  have  also  numerous  treaties  of 
exemption,  and  it  is  necessary  in  each  case  to  ascertain  whether  the  country 
of  the  forum  does  not  have  a  treaty  with  the  nation  to  which  the  plaintiff  in 
the  particular  case  belongs."  Fredeiac  R.  Coudert,  in  Proceedings,  Am.  Soc, 
V,  192,  206. 

469 


§  267]  RIGHTS   AND    DUTIES   OF   JURISDICTION 

respect  to  the  latter  may  notoriously  fail  when  the  complainant 
is  an  alien  and  local  prejudice  is  aroused  against  him.  This  has 
been  recognized  both  by  the  Constitution  and  legislation  of  the 
United  States  in  conferring  upon  aliens  under  specified  circum- 
stances the  right  to  invoke  the  jurisdiction  of  the  Federal  Courts.^ 
The  reason  for  the  distinction,  which  is  manifested  also  in  the  fre- 
quent efforts  made  to  encourage  the  Congress  to  enact  a  law  caus- 
ing certain  offenses  in  derogation  of  rights  conferred  by  treaty  upon 
foreigners  residing  in  American  territory  to  be  cognizable  in  the 
Federal  courts,^  is  not  for  the  purpose  of  affording  the  alien  more 
favorable  treatment  than  is  accorded  the  national,  but  rather  to 
give  to  the  former  by  a  different  process,  an  equal  opportunity 
to  secure  such  measure  of  justice  as  should  be  within  the  reach 
of  every  resident  of  the  national  domain. 


Operation  of  the  Judicial  System 

(1) 
§  268.   When  the  Alien  Invokes  the  Aid  of  the  Courts. 

The  alien  must  be  given  access  to  the  courts  whether  as  a  com- 
plainant in  a  civil  action  or  as  instigator  of  criminal  proceedings 
to  be  undertaken  by  the  State.^  Except  for  the  possible  obliga- 
tion to  furnish  security  for  costs  in  a  civil  action,  he  must  not  be 
subjected  to  discrimination  by  reason  of  his  foreign  nationality.^ 

1  Constitution,  Art.  Ill,  Section  2.  According  to  paragraph  17,  of  the 
Federal  Judicial  Code,  36  Stat.  1093,  U.  S.  Comp.  Stat.  1918,  §  991  (17),  the 
United  States  District  Courts  are  given  original  jurisdiction  "of  all  suits 
brought  by  any  alien  for  a  tort  only,  in  violation  of  the  laws  of  nations  or  of  a 
treaty  of  the  United  States." 

See,  also,  §  34  of  Federal  Judicial  Code,  36  Stat.  1098,  U.  S.  Comp.  Stat. 
1918,  §  1016,  specifying  conditions  when  a  personal  action  brought  in  any 
State  court  by  an  alien  against  a  citizen  of  a  State  who  is,  or  was  at  the  time 
the  alleged  action  accrued,  a  civil  officer  of  the  United  States,  may  be  re- 
moved to  the  United  States  District  Court. 

2  See.  for  example,  President  McKinley,  Annual  Message,  Dec.  5,  1899, 
For.  Rel.  1899,  xxii-xxiv,  Moore,  Dig.,  VI,  846. 

'  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  Sept.  7, 
1886,  MS.  Inst.  Mexico,  XXI,  574,  Moore,  Dig.,  VI,  680;  Mr.  Bayard,  Secv. 
of  State,  to  Mr.  Buck,  Minister  to  Peru,  No.  104,  Nov.  1,  1886,  MS.  Inst.  Peru, 
XVII,  252,  Moore,  Dig.,  VI,  267.  In  this  connection  it  may  be  observed  that 
it  is  not  the  duty  of  a  State  to  clothe  its  courts  with  jurisdiction  to  adjudicate 
with  respect  to  claims  of  aliens  against  other  aliens  arising  in  places  outside 
of  the  territory  or  control  of  the  State.  See,  for  example,  The  Gloria  De 
Larrinnga,  196  Fed.  590. 

<  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Copeland,  Feb.  23,  1886,  159  MS.  Dom. 
Let.  138,  Moore,  Dig.,  VI,  699;  Mr.  Porter,  Acting  Secv.  of  State,  to  Mr. 
Phelps,  Minister  to  Peru,  No.  131,  June  4,  1885,  MS.  Inst.  Peru,  XVII,  154, 
Moore,  Dig.,  VI,  253. 

470 


WHEN  THE  ALIEN   INVOKES  THE  AID   OF   COURTS        [§  268 

If  there  are  no  courts  in  the  country  of  residence,  or  if  access  thereto 
is  denied  him,  the  territorial  sovereign  is  beheved  to  fail  in  its 
duty.^ 

When  the  alien  is  a  complainant,  he  should  be  enabled  to 
invoke  the  aid  of  a  tribunal  free  to  disregard  the  political 
importance  of  his  adversaries,  even  though  they  are  the  agents 
or  officers  of  the  State.^  If  he  is  the  object  of  criminal  prosecu- 
tion, the  court  should  be  able  and  disposed  to  protect  him  from 
persecution. 

If  in  anticipation  of  injury  to  his  person  or  property  the  alien 
invokes  the  aid  of  the  judicial  department,  the  agencies  thereof 
must  be  diligently  employed  according  to  the  means  available 
and  commensurate  with  the  circumstances  arising,  to  prevent  the 
perpetration  of  wrongful  or  criminal  acts ;  and  the  requisite  force 
must  be  set  in  motion  to  prosecute  criminally  wrongdoers  who 
succeed  in  accomplishing  their  will.  Thus  the  failure  of  the  local 
authorities,  when  duly  warned,  to  invoke  judicial  aid  either  to 
prevent  the  commission  of  acts  of  mob  violence,  or  to  ascertain 
the  identity  of  and  institute  proceedings  against  the  actors,  would 
indicate  a  distinct  neglect  of  a  duty  of  jurisdiction.^  Such  re- 
missness would  be  the  more  reprehensible  should  the  judicial  or 
other  authorities  of  the  territorial  sovereign  connive  at  the  acts 
of  violence,  or  abet  the  actors."* 

Finally,  the  courts  should  be  clothed  with  power  not  only  to  de- 
nounce the  illegality  of  acts  that  are  proven  to  be  wrongful,  but 
also  to  decree  that  a  guilty  defendant  make  restitution.  It  is 
believed  that  this  is  true  even  when  the  wrongdoer  is  an  agency  of 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  No.  21, 
Aug.  15,  1873,  MS.  Inst.  Mexico,  XIX,  18,  Moore,  Dig.,  VI,  678. 

Declared  Mr.  Bayard,  Secy,  of  State,  in  a  communication  to  Mr.  Jackson, 
Minister  to  Mexico,  Sept.  7,  1886 :  "In  the  present  case,  for  instance,  it  was 
the  duty  of  the  claimant,  if  possible,  to  exhaust  his  remedy  in  the  Mexican 
courts  before  he  came  to  this  Department  for  its  intervention.  But  wheri  he 
was  precluded  from  so  doing  by  the  adverse  proceedings  instituted  against 
him  by  the  Mexican  authorities,  by  which  he  was  prevented  from  making 
out  his  case,  we  must  hold  that  justice  was  not  only  denied  him,  but  denied 
in  violation  of  settled  principles  of  international  law."  MS.  Inst.  Mexico, 
XXI,  574,  Moore,  Dig.,  VI,  680. 

See  opinion  of  Dr.  Wharton,  Solicitor  of  State  Dept.,  in  case  of  W.  A.  Davis 
V.  Great  Britain,  1885,  cited  in  letter  of  Mr.  Day,  Acting  Secy,  of  State, 
April  6,  1898,  227  MS.  Dom.  Let.  228,  Moore,  Dig.,  VI,  699. 

2  Lord  Palmerston,  in  the  House  of  Commons,  June  25,  1850,  in  case  of 
Don  Pacifico,  Moore,  Dig.,  VI,  681.  See,  also,  Promemoria  of  the  German 
Embassy  at  Washington,  Dec.  11,  1901,  concerning  claims  against  Venezuela, 
For.  Rel.  1901,  192,  Moore,  Dig.,  VI,  692. 

3  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Doughertv,  Charge,  No.  4.30,  Jan.  5, 
1891,  MS.  Inst.  Mexico,  XXIII,  14,  21,  Moore,  Dig.,  VI,  802,  803. 

<  Mr.  Fish,  Secv.  of  State,  to  Mr.  Partridge,  Minister  to  Brazil,  No.  141, 
March  5,  1875,  MS.  Inst.  Brazil,  XVI,  455,  Moore,  Dig.,  VI,  815,  816. 

471 


§268]         RICxHTS   AND   DUTIP]S   OF   JURISDICTION 

the  State  itself.  Whether  the  ahen  suffers  wrong  at  the  hands  of 
a  private  individual  or  through  the  laches  of  the  State,  the  victim 
should  be  given  a  means  of  redress  by  judicial  process  against  the 
wrongdoer.  Whenever  such  means  are  lacking  the  territorial 
sovereign  fails,  at  least  in  principle,  to  fulfill  a  duty  of  jurisdiction.^ 


(2) 

§  269.   When  the  Aid  of  the  Courts  Is  Invoked  against  the 
Alien. 

When  an  alien  is  the  object  of  criminal  prosecution  or  is  made  a 
defendant  in  a  suit  instituted  by  the  territorial  sovereign,  the 
duty  of  jurisdiction  with  reference  to  him  is  equally  apparent.^ 
Obviously  the  judicial  system  designed  for  the  protection  of  life 
and  property  must  not  be  employed  as  an  instrument  of  oppression.^ 

The  alien  when  prosecuted  criminally  must  be  given  oppor- 
tunity to  summon  witnesses  in  his  own  behalf  and  to  interrogate 
them."*  He  must  be  informed  of  the  nature  of  the  charges  pre- 
ferred against  him  and  be  enabled  to  defend  himself  with  the  aid 
of  counsel.^ 

3 
CLAIMS 

a 

§  270.   In  General. 

A  claim  in  international  law  may  be  defined  as  a  demand  for 
redress  made  by  one  State  upon  another  by  reason  of  the  alleged 

1  "How  Far  is  the  Position  of  Resident  Aliens  Recognized  and  Protected 
by  International  Law",  Proceedings,  Am.  Soc.  Int.  Law,  V.  32. 

-  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  Sept.  7, 
1886,  MS.  Inst.  Mexico,  XXI,  574,  Moore.  Dig.,  VI,  680.  See  Rights  of  Juris- 
diction, The  Establishment  of  a  Judicial  S>'stem,  supra,  §  219. 

^  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Baker,  Minister  to  Venezuela,  Oct.  15, 
1880,  For.  Rel.  1880,  1041,  1043,  Moore,  Dig.,  VI,  768;  Mr.  Marcv,  Secv.  of 
State,  to  Mr.  Clay,  Minister  to  Peru,  No.  30,  May  24,  1855,  MS.  Inst.  Peru, 
XV,  159,  Moore,  Dig.,  VI,  659;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Dougherty, 
Charge,  No.  423,  Dec.  29,  1890,  MS.  Inst.  Mexico,  XXII,  687,  Moore,  Dig., 
VI,  773 ;  Mr.  Root,  Secy,  of  State,  to  Mr.  Furniss,  Minister  to  Haiti,  Feb.  1, 
1907,  For.  Rel.  1907,  II,'  744. 

^  Mr.  Conrad,  Acting  Secy,  of  State,  to  Mr.  Peyton,  Charge  to  Chile, 
Oct.  12,  1852,  MS.  Inst.  Chile,  XV,  93,  Moore,  Dig.,  VI,  274. 

'  5  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Lowell,  Minister  to  England, 
April  25,  1882,  For.  Rel.  1882,  230-233,  Moore,  Dig.,  VI,  275;  Mr.  Bayard, 
Secy,  of  State,  to  Mr.  West,  British  Minister,  June  1,  1885,  For.  Rel.  1885, 
450,  453-454,  Moore,  Dig.,  VI,  277-279. 

472 


CLAIMS  — IN  GENERAL  [§270 

wrongful  conduct  of  that  other. ^     The  same  term  is  also  commonly 
used  to  signify  the  ground  of  complaint  which  is  the  basis  of  the 

^  "A  claim  'is,  in  a  just  juridical  sense,  a  demand  of  some  matter,  as  of 
right,  made  by  one  person  upon  another,  to  do  or  to  forbear  to  do  some 
act  or  thing  as  a  matter  of  duty.'  [Prigg  v.  Penna.,  16  Pet.  539,  U.  S.  Sup. 
Ct.] 

"  In  my  judgment  a  claim  upon  the  United  States  is  something  in  the  nature 
of  a  demand  for  damages  arising  out  of  some  alleged  act  or  omission  of  the 
Government  not  yet  provided  for  or  acknowledged.  As  the  term  imports,  it 
i?  something  asked  for  or  demanded  on  the  one  hand  and  not  admitted  or 
allowed  on  the  other.  [Moore's  Int.  Arb.,  3623,  citing  Dowell  v.  Cordwell, 
4  Saw.,  U.  S.  Cir.  Ct.,  228,  and  quoting  from  Deady,  J.] 

"On  a  claim  against  a  foreign  government  for  spoliation  the  demand  is 
founded  upon  the  law  of  nations  and  the  obligation  of  the  offending  govern- 
ment is  perfect.     [Emerson  v.  Hall,  13  Pet.  409,  U.  S.  Sup.  Ct.] 

"Claim:  1.  A  demand  of  a  right  or  supposed  right;  a  calling  on  another 
for  something  due  or  supposed  to  be  due.  'Doth  he  lay  claim  to  thine  in- 
heritance?' —  Shak.  2.  A  right  to  claim  or  demand;  a  title  to  any  debt, 
privilege,  or  other  thing  in  possession  of  another.  'A  bar  to  all  claims  upon 
land.' — Hallam.  3.  The  thing  claimed  or  demanded;  that  to  which  any 
one  has  a  right,  as  a  settler's  claim  [U.  S.  and  Australia].     [Webster.] 

"Claim:  1.  A  demand  of  anything  as  due.  2.  A  title  to  any  privilege 
or  possession  in  the  hands  of  another.     [Johnson.] 

"  In  the  Spanish  language  the  word  of  corresponding  meaning  is  reclamacion. 

"'The  opposition  or  contradiction  which  is  made  to  anything  as  unjust.' 
This  is  reclamatio,  oppositio.     [Salva.] 

"'The  demand  made  for  anything  by  him  who  has  the  right  of  property  in 
it  against  him  who  possesses  or  denies  it.'     This  is  reclamatio.     [Salv^.] 

"Reclamacion  [claim]:  The  opposition  or  contradiction  that  is  made  in 
words  or  in  writing  against  anything  as  unjust,  or  by  showing  that  it  contra- 
dicts itself;  and  the  claim  or  demand  for  anything  by  him  who  has  the  right 
of  property  in  it  against  him  who  possesses  it.  [Escriche,  Diet,  of  Lcgis.]" 
Authorities  cited  by  Plumloy,  Umpire,  in  the  Aroa  Mines  Case,  British- 
Venezuelan  Commission,  1903,  Ralston's  Report,  354-355. 

See,  also,  Paul,  Commissioner,  in  the  Boulton,  Bliss  &  Dallett  Case,  Ameri- 
can-Venezuelan Commission,  1903,  Ral  ton's  Report,  26 ;  Bruce,  Arbitrator, 
in  the  Bond  Cases,  United  States-Colombian  Commission,  Convention  of 
Feb.  10,  1864,  Moore,  Arbitrations,  IV,  3615.  All  of  the  foregoing  definitions 
are  contained  in  J.  H.  Ralston,  Arbitral  Law,  153-154. 

Concerning  Claims  generallv,  see  American  Societv  Int.  Law,  Proceedings, 
II,  44-67 ;  id.,  IV,  16-27,  46-193  ;  id.,  V,  32-43,  192-212 ;  Edwin  M.  Borchard, 
The  Diplomatic  Protection  of  Citizens  Abroad,  New  York,  1915;  David  J. 
Brewer  and  Charles  Henry  Butler,  in  "Cijc",  XXII,  1734-1756;  Hcrshey, 
Essentials,  161-169,  with  biljliographv;  William  Lawrence,  The  Law  of 
Claims  against  Governments,  Washington,  1S75 ;  J.  H.  Ralston,  International 
Arbitral  Law  and  Procedure,  1910;  George  Winfield  Scott,  in  Annals,  Am. 
Acad.  Pol.  &  Social  Science  (1903),  p.  74. 

Cf.,  also,  D.  Anzilotti,  Teoria  generate  della  responsabilita  dello  stato  nel 
dir'tto  internazionale,  Florence,  1902;  same,  in  Rev.  (7e/t.,XIII,  5-29,  285-309; 
E  nilio  Brusa,  Report  to  the  Institute  of  International  Law,  in  Behalf  of  the 
Ninth  Commission,  on  the  Responsibility  of  States  by  Reason  of  Damages 
Sustained  bv  Foreigners  in  cases  of  Riots  and  Civil  Wars,  Aunuaire,  XVII, 
96-137 ;  id.',  XVIIL  47-49 ;  Resolution  of  the  Institute,  id.,  254-256 ;  Bibliog- 
ranhy  in  Clunct,  Tables  Generales,  I,  468-472,  885;  Oppenheim,  2  ed.,  I,  206- 
225 ;  J.  Tchernoff,  Le  droit  de  protection,  exerce  par  un  Etat  a  I'tgard  de  ses 
nntionaux,  residant  a  Vetranger,  Paris,  1908;  Gaston  de  Leval,  De  la  pro- 
tection diplomatique  des  nationanx  a  Vetranger,  Brussels,  1907;  Diplomatic 
Protection  of  Citizens  Abroad,  International  Law  Association,  Proceedings, 
24th  Conference  (1907),  196-210;  Carlos  Wiesse,  Le  droit  international  ap- 
plique aux  guerres  civiles,  Lausanne,  1898. 

473 


§  270]         RIGHTS   AND    DUTIES   OF   JURISDICTION 

demand.^  From  an  international  point  of  view  a  claim  does  not 
[  arise  until  the  demand  for  redress  has  been  presented  to  the  State 
charged  with  having  been  at  fault.  The  bare  right  to  demand  re- 
,4ress,  however  much  it  may  justify  complaint,  is  not  the  equivalent 
of  a  claim,  and  does  not  always  ripen  into  one.  The  making  of  the 
demand  is  the  significant  fact.  This  act  implies  that  in  the  judg- 
ment of  the  complainant  State,  the  foreign  power  to  which  the 
demand  is  addressed  has  itself,  through  some  agency  of  its  own, 
violated  a  duty  imposed  by  international  law  or  by  treaty,  and 
that  it  offers  no  adequate  means  of  obtaining  redress  through  any 
domestic  channel.  It  will  be  found  that  the  adequacy  of  such 
means  may  depend  upon  the  nature  of  the  claim. 

The  demand  for  redress  may  be  made  by  diplomacy ;  it  may 
,  also  be  urged  by  force.  Thus  Germany,  Great  Britain  and  Italy 
in  1902  united  in  blockading  certain  ports  of  Venezuela  as  a  means 
of  securing  redress  for  WTongs  charged  against  that  State.^ 
,  The  redress  sought  may  assume  a  variety  of  forms.  The  relin- 
quishment of  control  over  territory,  or  the  payment  of  an  indemnity, 
or  the  salute  to  a  national  flag  may,  for  example,  be  demanded. 

Claims  may  be  divided  into  two  broad  classes  :  first,  those  which 
are  based  upon  private  complaints  of  individuals  whose  govern- 
ment acts  as  their  representative  in  espousing  their  cause  ;  secondly, 
those  which  "  concern  the  State  itself  considered  as  a  whole."  ^ 
Pecuniary  claims  are  usually,  although  not  necessarily,  of  the 
former  class.  It  will  be  found  that  pecuniary  claims  of  a  national 
character  have  rarely  been  sought  to  be  adjusted  by  arbitration. 

The  act  of  demanding  reparation  from  a  foreign  State  in  be- 
half of  an  individual  is  commonly  known  as  interposition.  In  so 
far  as  it  does  not  purport  to  interfere  with  the  political  independ- 

'  Little,  Commissioner,  in  the  Alexander  Scott  Case,  United  States- Ven- 
ezuelan Commission  Convention  of  Dec.  5,  1885,  Moore,  Arbitrations,  IV, 
4393-4394. 

*  For.  Rel.  1903,  417-439. 

'  Lord  Salisbury  to  Sir  Julian  Pauncefote,  No.  65,  March  5,  1896,  For.  Rel. 
1896,  222,  where  Lord  Salisbury  also  declared:  "A  claim  for  an  indemnity 
or  for  damages  belongs  generally  to  the  first  class ;  a  claim  to  territory  or 
sovereign  rights  belongs  to  the  second."  The  proposed  general  arbitration 
treaty  of  Jan.  11,  1897,  between  the  United  States  and  Great  Britain  (which 
failed  to  receive  the  approval  of  the  Senate)  made  provision  for  the  adjust- 
ment of  "pecuniary  claims"  referred  to  in  Art.  II,  and  "territorial  claims" 
referred  to  in  Art.  VI.  A  sharp  distinction  was  drawn  in  respect  to  the  means 
to  be  employed  for  the  solution  of  controversies  of  the  latter  kind.  Further- 
more it  was  also  declared  that  when  a  pecuniary  claim  was  beUeved  by  either 
party  to  involve  "the  decision  of  a  disputed  question  of  principle  of  grave 
general  importance  affecting  the  national  rights  of  such  party  as  distinguished 
from  the  private  rights  whereof  it  is  merely  the  international  representative", 
the  claim  should  be  dealt  with  by  the  procedure  to  be  followed  with  respect 
to  territorial  claims.     Id.,  238-240. 

474 


CLAIMS— IN  GENERAL  [§271 

ence  of  the  country  whose  conduct  is  the  source  of  complaint, 
such  action  does  not  resemble  intervention.  The  preferring  of  a 
claim  by  interposition  may,  however,  lead  to  intervention  if  the 
demands  of  the  aggrieved  State  are  ignored  or  treated  with 
contempt.^ 

The  study  of  claims  involves  a  fourfold  inquiry  concerning, 
first,  the  relation  of  the  aggrieved  individual  (if  the  claim  be  a 
private  rather  than  a  public  one)  to  the  State  called  upon  to 
espouse  his  cause;  secondly,  the  relation  of  the  actors  whose 
conduct  is  the  source  of  complaint  to  the  State  against  which  a 
demand  for  redress  is  contemplated ;  thirdly,  the  responsibility 
of  that  State  for  the  consequences  of  the  acts  committed ;  and 
fourthly,  the  procedure  to  be  followed  in  order  to  obtain  redress. 
Thus  it  will  be  found  that  a  State,  such  as  the  United  States,  may 
refrain  from  interposition  because  the  aggrieved  individual  is 
not  one  of  its  own  nationals,  or  because  the  acts  giving  rise  to 
complaint  have  not  been  committed  by  any  authority  of  the  terri- 
torial sovereign,  or  because  the  acts,  although  committed  by  an 
official  within  the  scope  of  his  duty,  have  not  been  internationally 
illegal,  or  because  notwithstanding  a  denial  of  justice  by  the  ter- 
ritorial sovereign,  the  individual  claimant  has  failed  to  exhaust 
the  local  remedies  available  to  him.  When  the  propriety  of  in- 
terposition is  questioned,  it  becomes  important  to  observe  upon 
which  of  the  foregoing  reasons  reliance  is  placed.'^  r 

b 

Mode  of  Presentation  of  Private  Claims 

(1) 

§  271.    Claims  against  the  United  States. 

International  claims  against  the  United  States  must  be  presented 
through  the  diplomatic  channel.     The  claim  of  an  alien  must  be 

1  Intervention,  supra,  §  69.  See  J.  R.  Clark,  Jr.,  Solicitor,  Dept.  of 
State,  Memorandum  on  Right  to  Protect  Citizens  in  Foreign  Countries  by- 
Landing  Forces,  October,  1912,  p.  30. 

*  "Claims  presented  by  the  Government  of  the  United  States  against  a 
foreign  Government  are  based  fundamentally,  among  other  things,  upon  loss 
or  injury  (1)  which  was  suffered  by  the  United  States  or  by  its  citizens  or  those 
entitled  to  its  protection,  and  (2)  for  which  a  foreign  Government,  including 
its  officials,  branches,  or  agencies,  was  responsible.  If  either  of  these  elements 
is  lacking  the  validity  of  the  claim  is  doulatful  and,  as  a  rule,  the  Government 
of  the  United  States  is  not  in  a  position  to  be  of  any  assistance  in  obtaining 
reparation."     Department  of  State,  Circular  respecting  the  application  for 

475 


§  271]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

preferred  by  the  regular  accredited  representative  of  his  govern- 
ment.^ 

(2) 

§  272.    Claims  against  Foreign  Governments. 

The  presentation  of  claims  against  a  foreign  State  in  behalf 
of  the  United  States  or  citizens  thereof  must  be  made  through  the 
Department  of  State. ^ 

If  the  claim  is  founded  upon  the  complaint  of  an  individual, 
and  based  upon  contract,  a  diplomatic  representative  of  the  United 
States  is  not  permitted  to  interfere  without  specific  instructions. 
Where  it  is  founded  in  tort,  he  is  required  likewise  to  await  in- 
structions, unless  the  person  of  the  claimant  be  assailed  or  there 
be  pressing  necessity  for  action  before  the  Department  of  State 
can  be  consulted ;  in  which  event  he  "  will  communicate  in  full 
the  reasons  for  his  interference."  ^ 

the  support  of  claims  against  foreign  governments,  1919,  Senate  Doc.  No.  67, 
66  Cong.,  1  Sess.,  p.  7,  and  contained  in  revision  of  Jan.  30,  1920. 

It  should  be  noted  that  the  Claims  Circular  of  1919  superseded  Circular 
issued  by  the  Department  of  State  March  5,  1906,  and  was  issued  in  revised 
form  Jan.  30,  1920. 

1  Mr.  Fish,  Secy,  of  State  to  Mr.  Lawrence,  M.  C,  April  22,  1874,  Magoon's 
Reports,  338,  Moore,  Dig.,  VI,  607;  Mr.  Frelinghuysen,  Secy,  of  State,  to 
Baron  de  Fava,  June  21,  1884,  MS.  Notes  to  Italy,  VIII,  83,  Moore,  Dig.,  VI, 
608. 

Declared  Chief  Justice  Waite,  in  United  States  v.  Diekelman :  "A  citizen 
of  one  nation  wronged  by  the  conduct  of  another  nation,  must  seek  redress 
through  his  own  government.  His  sovereign  must  assume  the  responsibility 
of  presenting  his  claim,  or  it  need  not  be  considered.  If  this  responsibility  is 
assumed,  the  claim  may  be  prosecuted  as  one  nation  proceeds  against  another, 
not  by  suit  in  the  courts,  as  of  right,  but  by  diplomacy,  or,  if  need  be,  by  war. 
It  rests  with  the  sovereign  against  whom  the  demand  is  made  to  determine 
for  himself  what  he  will  do  in  respect  to  it.  He  may  pay  or  reject  it ;  he  may 
submit  to  arbitration,  open  his  own  courts  to  suit,  or  consent  to  be  tried  in  the 
courts  of  another  nation.     All  depends  upon  himself."     92  U.  S.  520,  524. 

According  to  Rev.  Stat.  §  1068,  Act  of  March  3,  1911,  Chap.  231  (Judi- 
cial Code,  §  155),  36  Stat.  1139,  U.  S.  Comp.  Stat.  1918,  §  1146:  "Aliens 
who  are  citizens  or  subjects  of  any  government  which  accords  to  citizens  of 
the  United  States  the  right  to  prosecute  claims  against  such  government  in  its 
courts,  shall  have  the  privilege  of  prosecuting  claims  against  the  United  States 
in  the  Court  of  Claims,  whereof  such  court,  by  reason  of  their  subject  matter 
and  character,  might  take  jurisdiction." 

2  Mr.  Marcv,  Sec  v.  of  State,  to  Mr.  Crain,  Feb.  24,  1854,  42  MS.  Dom.  Let. 
244,  Moore,  Dig..  VI.  609. 

'  Instructions  to  Diplomatic  Officers  (1897),  §  174,  p.  68,  Moore,  Dig..  VI, 
609 ;  see,  also,  Mr.  Olnev,  Secv.  of  State,  to  Mr.  Smvthe,  Minister  to  Haiti, 
No.  136,  March  20,  1896,  MS.  Inst.  Haiti,  III,  479,  Moore,  Dig.,  VI,  609; 
also  other  documents  cited  in  Moore,  Dig.,  VI,  609-610;  Mr.  Bavard,  Secy, 
of  State,  to  Mr.  Denby,  Feb.  5,  1886,  MS.  Inst.  China.  IV.  118,  Moore,  Dig., 
VI,  614,  where  it  was  declared  that  the  Department  of  State  requires  as  a  con- 
dition precedent  to  the  presentation  of  a  claim  to  a  foreign  government  "  simply 
a  prima  facie  case  such  as  would  authorize  a  chancellor  to  issue  ex  parte  pro- 
cess." 

476 


OBSTACLES  TO  PRESENTATION  [§  274 

C 

The  Prosecution  of  Private  Claims 

(1) 
§  273.   Discretion  as  to  Presentation. 

As  a  matter  of  domestic  law,  a  State  exercises  a  broad  discretion 
with  respect  to  the  preferment  of  demands  for  redress  in  behalf 
of  its  own  nationals.^  Over  such  claims  the  prosecuting  State 
has  full  control ;  it  may,  as  a  matter  of  pure  right,  refuse  to  present 
them  at  all ;  it  may  surrender  or  compromise  them  without  con- 
sulting the  claimants.^  It  may  decide  for  itself  the  time  and  manner 
of  pressure.^  Thus  the  Department  of  State  is  disposed  to  sus- 
pend the  prosecution  of  a  claim  when  either  House  of  Congress 
has  called  for  the  papers  with  a  view  to  consideration  of  the  sub- 
ject.^ 

(2) 

§  274.    Obstacles  to  Presentation. 

"Diplomatic  aid  will  not  be  rendered  to  press  on  a  foreign 
government  a  claim  which  is  based  on  an  act  against  public  policy."  ^ 
Thus  the  Department  of  State  has  declined  to  recognize  as  worthy 
of  support,  a  contract  alleged  to  have  been  concluded  by  a  citizen 
of  the  United  States  with  the  executive  or  agent  of  another  govern- 
ment, for  the  purpose  of  setting  aside  a  treaty  between  the  United 
States  and  that  government.^ 

1  Mr.  Frelinghuysen,  Sec.y.  of  State,  to  Mr.  Suydam,  Sept.  25,  1882,  cited 
in  Report  of  Mr.  Bayard,  Secy,  of  State,  to  the  President,  Jan.  20,  1887,  For. 
Rel.  1887,  606,  Moore,  Dig.,  VI,  616. 

'^  The  language  in  the  text  is  that  of  Mr.  Frelinghuysen,  Secy,  of  State,  to 
Messrs.  Mullan  and  King,  Feb.  11,  1884,  quoted  in  report  of  Mr.  Bayard, 
Secy,  of  State,  to  the  President,  Jan.  20,  1887,  For.  Rel.  1887,  607,  Moore, 
Dig.,  VI,  616. 

"The  presentation  of  a  claim  does  not  bind  the  government  presenting  it 
to  insist  upon  it;  nor  does  reception  amount  to  a  recognition  of  its  validity." 
Ralston,  Arbitral  Law,  158,  citing  Bruce,  Arbitrator,  in  the  case  of  La  Con- 
stancia,  American-Colombian  Commission,  Convention  of  Feb.  10,  1864, 
Moore,  Arbitrations,  2742. 

'  "Where  a  government  takes  up  the  claim  of  one  of  its  citizens  against 
another  government  it  necessarily  possesses  and  exercises  the  power  to  decide 
for  itself  when  and  to  what  extent  it  will  press  the  claim,  as  well  as  the  means 
which  it  will  employ  for  that  purpose."     Moore,  Dig.,  VI,  627. 

*  Mr.  J.  C.  B.  Davis,  Acting  Secy,  of  State,  to  Messrs.  Hartley  et  al.,  Sept.  26, 
1871,  For.  Rel.  1887,  594,  Moore,'Dig.,  VI,  627. 

^  The  language  of  the  text  is  that  used  in  Moore,  Dig.,  VI,  617,  citing  Mr. 
Seward,  Secv.  of  State,  to  Mr.  Whitney,  July  24,  1868,  79  MS.  Dom.  Let.  119. 

6  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Matchett,  March  19,  1891,  181  MS. 
Dom.  Let.  273,  Moore,  Dig.,  VI,  620;  also  other  documents  cited  in  Moore, 
Dig.,  VI,  617-620. 

477 


§  274]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

A  citizen  by  reason  of  his  own  acts  may  lose  his  right  to  be  pro- 
tected by  his  government,  in  the  prosecution  of  any  demand  for 
redress  against  a  foreign  State. ^  The  censurable  conduct  of  the 
claimant  may  cause  his  own  State  to  withhold  interposition  in 
his  behalf.  Thus  fraudulent  acts  on  his  part  for  the  purpose  of 
enhancing  the  value  of  his  claim,  or  of  influencing  proceedings  in 
support  of  it,  should  serve  to  deprive  him  of  affirmative  aid  which 
he  might  otherwise  receive  from  his  government.^  Nor  should  a 
State  lend  its  aid  to  one  who  founds  his  cause  upon  illegal  or  im- 
moral conduct.^  It  should  be  observed,  however,  that  it  is  the 
judgment  of  the  State  whose  aid  is  invoked  in  pursuance  of  its 
domestic  policy,  that  is  decisive  of  whether  the  acts  of  the  claimant 
have  been  such  as  to  preclude  interposition.* 

Unneutral  conduct  on  the  part  of  an  individual  is  deemed  to 
be  internationally  illegal,  even  though  in  the  particular  case  the 
circumstances  are  such  as  to  impose  no  duty  of  prevention  upon 
his  own  State  itself  not  a  belligerent.^  Hence  the  person  engaged 
in  such  transactions  may  be  fairly  regarded  as  forfeiting  the  right 
to  demand  and  secure  the  protection  by  his  ow^n  country  from  the 
consequences  of  his  misconduct.^    Obviously  a  State  should  alwaj's 

^  Concerning  generally  the  loss  of  right  to  national  protection,  see  Nation- 
ality, Loss  of  Right  to  National  Protection,  infra,  §§  388-393 ;  also,  documents 
in  Moore,  Dig.,  Ill,  757-795;  id.,  VI,  621-622;  Moore,  Arbitrations,  III, 
2729-2857. 

2  Mr.  Seward,  Secy,  of  State,  to  Lord  Lyons,  British  Minister,  May  30, 
1862,  MS.  Notes  to  Great  Britain,  IX,  187;   Moore,  Dig.,  VI,  622. 

See,  also,  Department  of  State,  Claims  Circular  of  1919,  Section  20,  where 
it  is  announced  that  the  making  of  false  statements  in  the  application  of  a 
claimant  or  in  connection  therewith,  pertaining  to  the  diplomatic  relations  of 
the  United  States  with  foreign  countries,  may  result  in  the  instigation  of  legal 
proceedings  or  in  the  withdrawal  of  the  Government's  assistance  and  support 
in  connection  with  the  settlement  of  a  claim. 

^  Such  was  the  emphatic  opinion  of  Mr.  Bayard,  Secy,  of  State,  in  a  Report 
to  the  President,  Jan.  20,  1887,  For.  Rel.  1887,  592,  607,  Moore,  Dig.,  VI, 
622-623.  See,  also,  Mr.  Root,  Secv.  of  State,  to  Mr.  Furniss,  Minister  to  Haiti, 
May  4,  1906,  For.  Rel.  1906,  II,  871. 

*  Theodore  S.  Woolsey,  Proceedings,  Am.  Soc,  IV,  99;  Arthur  K.  Kuhn, 
id.,  110. 

5  "Acts  which  have  in  the  past  been  regarded  as  sufficient  grounds  for  the 
Government  to  decline  protection  to  Americans  in  particular  cases  are.  among 
others,  maintaining  extended  domicile  in  a  foreign  country,  unneutral  con- 
duct, acceptance  of  office  under  a  foreign  Government,  active  participation 
in  foreign  politics,  participation  in  filibustering  or  insurrectionary  movements 
against  a  friendly  foreign  Government,  seeking  refuge  from  justice,  and,  gen- 
erally, acts  inconsistent  with  allegiance  to  the  United  States."  Department 
of  State,  Claims  Circular  of  1919,  revision  of  Jan.  30,  1920,  Section  7. 

See  Neutrality,  infra,  §§  871-872.  Report  of  War  Department  Commis- 
sion of  1912,  to  investigate  claims  against  Mexico,  with  respect  to  Case  of 
Converse  and  Blatt,  For.  Rel.  1912,  971. 

«  Mr.  Fish,  Secy,  of  State,  to  Mr.  Murrav,  Dec.  7,  1869,  82  MS.  Dom.  Let. 
453,  Moore,  Dig.,VI,  623 ;  Mr.  Bavard,  Secv.  of  State,  to  Messrs.  Morris  and 
Fillette,  July  28,  1888,  169  MS.  Dom.  Let.  263,  Moore,  Dig.,  VI,  623. 

478 


NATIONALITY  OF  CLAIMANT  [§  275 

refrain  from  presenting  a  claim  arising  from  or  incidental  to  a 
breach  of  international  law  on  the  part  of  a  national.^ 


Conditions  of  Interposition  in  Behalf  of  a  Private  Claimant 

(1) 
§  275.   Nationality  of  Claimant. 

A  State  should  not  undertake  to  press  a  claim  for  redress  in 
behalf  of  an  individual  against  a  foreign  government,  unless  he 
was  one  of  its  own  nationals  both  at  the  time  when  the  claim  arose 
and  continuously  thereafter  until  its  preferment.^    In  1919,  the 

See,  also,  J.  H.  Ralston,  Arbitral  Law,  §  397,  citing  Thornton,  Umpire  in 
the  Fitch  Case,  Mexican-American  Commission,  Convention  of  Juh^  4,  1868, 
Moore,  Arbitrations,  IV,  3476. 

1  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Coxe,  Minister  to  Guatemala  and 
Honduras,  No.  71,  April  21,  1897,  For.  Rel.  1897,  332,  Moore,  Dig.,  VI,  624. 
See,  also,  Young  v.  United  States,  97  U.  S.  39,  62. 

Membership  by  an  American  citizen  in  a  so-called  "Urban  Guard",  a 
temporary  committee  of  safety  confining  its  efforts  to  safeguarding  life  and 
property,  and  avoiding  taking  either  side  in  a  civil  strife  dividing  the  Republic 
of  Peru  in  1885,  was  not  regarded  by  the  Department  of  State  as  conduct 
such  as  to  preclude  the  presentation  of  a  claim  for  the  forcible  taking  from  a 
member  of  the  guard  of  live  stock  bv  the  Peruvian  Government.  Mr.  Olney, 
Secv.  of  State,  to  Mr.  Neill,  Charge,  No.  209,  Dec.  22,  1896,  MS.  Inst.  Peru, 
XVIII,  11,  Moore,  Dig.,  VI,  626. 

2  Therefore  the  Department  of  State  incorporated  the  following  statement 
in  Section  6  of  its  Claims  Circular  of  1919  "Moreover,  the  Government  of 
the  United  States,  as  a  rule,  declines  to  support  claims  that  have  not  belonged 
to  claimants  of  one  of  these  classes  from  the  date  the  claim  arose  to  the  date 
of  its  settlement.  Consequently,  claims  of  foreigners  who,  after  the  claims 
accrued,  became  Americans  or  became  entitled  to  American  protection,  or 
claims  of  Americans  or  persons  entitled  to  American  protection  who,  after 
the  claims  accrued,  assurned  foreign  nationality  or  protection  and  lost  their 
American  nationalitv  or  right  to  American  protection,  or  claims  which  Ameri- 
cans or  persons  entitled  to  American  protection  have  received  from  aliens 
by  assignment,  purchase,  succession,  or  otherwise,  or  vice  versa,  cannot  be 
espoused  by  the  United  States.  For  example,  a  claim  for  a  loss  or  injury 
which  occurred  before  the  claimant  obtained  final  naturalization  as  a  citizen 
of  the  ITnited  States  (except  in  case  of  an  American  seaman  who  has  made 
a  declaration  of  intention)  will  not,  by  reason  of  his  subsequent  naturaliza- 
tion, be  supported  by  the  United  States."  Senate  Doc.  No.  67,  66  Cong., 
1  Sess. 

See,  also,  Mr.  Moore,  Assist.  Secy  of  State,  to  Mr.  Eustis,  July  26,  1S98. 
230  MS.  Dom.  Let.  378,  Moore,  Dig.,  VI,  631,  where  it  was  also  declared  that 
"the  acquisition  of  a  title  to  a  government's  protection  does  not  operate 
retroactivelv."  C/.,  also,  Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Champly, 
Aoril  1.5,  1837,  29  MS.  Dom.  Let.  71,  Moore,  Dig.,  VI,  628 ;  Mr.  Gresham 
Secv.  of  State,  to  Mr.  Lodge,  April  17,  1895,  201  MS.  Dom.  Let.  534,  Moore, 
Dig.,  VI.  630;   Burthe  v.  Denis,  133  U.  S.  514,  520-522,  Moore,  Dig.,  VI,  628. 

"With  extremely  rare  exceptions,  and  such  exceptions  based  upon  the 
particular  language  of  treaties  having  exceptional  circumstances  in  view,  the 
language  of  commissions  has  been  that  the  claim  must  be  founded  uyion  an 
injury  or  wrong  to  a  citizen  of  the  claimant  government,  and  that  the  title 

479 


§  275]         RIGHTS   AND   DUTIES   OF   JURISDICTION 

Department  of  State  made  the  following  statement  in  the  course 
of  its  general  instructions  for  claimants : 

The  Government  of  the  United  States  can  interpose  effectively 
through  diplomatic  channels  only  on  behalf  of  itself,  or  of  claim- 
ants (1)  who  have  American  nationality  (such  as  citizens  of 
the  United  States,  including  companies  and  corporations, 
Indians  and  members  of  other  aboriginal  tribes  or  native  peoples 
of  the  United  States  or  its  territories  or  possessions,  etc.),  or 
(2)  who  are  otherwise  entitled  to  American  protection  in  cer- 
tain cases  (such  as  certain  classes  of  seamen  on  American  vessels, 
members  of  the  military  or  naval  forces  of  the  United  States, 
etc.).  Unless,  therefore,  the  claimant  can  bring  himself  within 
one  of  these  classes  of  claimants,  the  Government  cannot  under- 
take to  present  his  claim  to  a  foreign  government.  For  example, 
the  declaration  of  intention  to  become  a  citizen  of  the  United 
States  is  insufficient  to  establish  the  right  to  protection  by  the 
United  States  except  in  case  of  American  seamen.^ 

to  such  claim  must  have  remained  continuously  in  the  hands  of  citizens  of 
such  government  until  the  time  of  its  presentation  for  filing  before  the  com- 
mission." Ralston,  Arbitral  Law,  105,  citing  the  Abbiatti  Case  before  United 
States  and  Venezuelan  Claims  Commission,  Moore,  .\rbitrations.  III.  2347. 
See,  also,  Ralston,  Arbitral  Law,  105-107,  and  other  cases  there  cited,  es- 
pecially the  Corva'ia  Case,  Italian-Venezuelan  Commission,  1903,  Ralston's 
Report,  782,  802. 

See,  also,  award  of  the  Court  of  Arbitration,  at  the  Hague,  May  3,  1912, 
in  the  Canevaro  Case  between  Italy  and  Peru,  especially  in  denying  com- 
pensation to  Raphael  Canevaro  as  an  Itahan  claimant  by  reason  of  his  Pe- 
ruvian nationality,  Am.  J.,  VI.  746,  747;  also  editorial  comment,  id.,  709; 
J.  B.  Scott,  Hague  Court  Reports,  522. 

While  in  the  opinion  of  the  Department  of  State,  an  American  citizen  is 
not  entitled  to  invoke  the  assistance  of  the  United  States  in  respect  to  a  claim 
against  another  government  acquired  from  a  foreigner  by  marriage  and  as- 
signment (by  a  partnership  arrangement  or  otherwise),  "yet  it  is  beheved  that 
where  such  claim  comes  to  the  wife  by  succession,  upon  the  death  of  her 
husband  .  .  .  the  offices  of  this  Government  should  be  extended  to  her." 
Mr  Hill,  Assist.  Secv.  of  State,  to  Messrs.  Coudert  Brothers,  June  9,  1900, 
245  MS.  Dom.  Let.  484,  Moore,  Dig.,  VI,  630. 

Although  a  seaman  in  the  naval  or  mercantile  marine  under  a  foreign  flag 
is  doubtless  entitled  to  the  special  protection  of  the  country  to  which  the  vessel 
belongs,  the  United  States  may  not  be  disposed  to  prefer  a  claim  against 
another  State  in  behalf  of  a  seaman  on  an  American  vessel  when  his  foreign 
nationalitv  has  been  established.  See  Mr.  Bayard,  Secy,  of  State,  to  Mr. 
Thompson,  Minister  to  Haiti,  Julv  31,  1885,  MS.  Inst.  Haiti.  II,  511,  Moore, 
Dig.,  III.  796:  Claim  of  Patrick  Shields  against  Chile,  For.  Rel.  1900,  66-71, 
Moore,  Dig.,  Ill,  796;  Mr.  Uhl,  Acting  Secv.  of  State,  to  Messrs.  Goodrich 
et  al.,  April  10.  1894,  For.  Rel.  1895,  I,  229,  231,  Moore,  Dig.,  III.  798. 

Regarding  the  Protection  of  Seamen,  cf.  Nationalitv,  infra,  §  394;  also  In 
re  Ross,  140  U.  S.  453. 

1  Senate  Doc.  No.  67,  66  Cong.,  1  Sess.,  Section  5,  p.  8;  Revision  of  Jan. 
30,  1920,  p.  2.  See,  also.  Report  of  War  Department  Commission  of  1912,  on 
Claims  against  Mexico,  in  respect  to  cases  arising  in  El  Paso,  Texas,  and 
Douglas,  .\rizona,  from  gunshot  wounds  inflicted  from  the  Mexican  side  of  the 
border.  For.  Rel.  1912,  975,  979. 

480 


NATIONALITY  OF  CLAIMANT  [§  275 

There  have  been  instances,  however,  where  ahens  domiciled 
within  the  territory  of  the  United  States,  and  who  have  declared 
an  intention  to  become  citizens  thereof,  appear  to  have  been  re- 
garded as  entitled  to  claim  the  benefits  of  American  nationality 
when  they  have  suffered  wrong  at  the  hands  of  foreign  States 
other  than  the  country  of  origin.  The  attempts  to  secure  the 
adjudication  of  the  claims  of  such  individuals  before  commis- 
sions under  claims  conventions  between  the  United  States  and 
countries  alleged  to  have  been  at  fault,  have  been  successful  when 
it  has  been  shown  that  the  claimant  was  domiciled  in  Ameri- 
can territory  at  the  time  of  the  commission  of  acts  complained 
of,  and  continuously  thereafter  until  the  preference  of  the  claim ; 
and  when  also  prior  to  its  preference,  he  had  perfected  his 
American  naturalization.^  Such  a  situation  rarely  arises,  and 
the  conditions  permitting  interposition  must  be  regarded  as 
exceptional. 

A  mere  declaration  of  intention  by  a  foreigner  to  become  a 
citizen  is,  and  should  be,  regarded  as  in  itself  insufficient  to  cause 
the  State  whose  nationality  is  sought  to  be  acquired  to  prefer 
a  claim  in  his  behalf.^  A  declaration  of  intention  on  the  part  of  a 
foreigner  to  become  an  American  citizen,  even  though  coupled 
with  residence  in  a  State  of  the  United  States  and  participation 
in  the  political  life  of  such  commonwealth,  would  not  preclude 
the  country  of  origin  from  preferring  a  claim  against  the  United 
States  in  behalf  of  the  individual,  because  such  acts  on  his  part 

^  See  reasoning  in  the  cases  of  Jarr  and  Hurst,  Mexican-American  Com- 
mission, Convention  of  July  4,  1868,  Moore,  Arbitrations,  III,  2707;  case  of 
Hellman,  before  same  Commission,  id.,  2715;  case  of  Eigendorff,  Ijefore  same 
Commission,  id.,  2717.  Note  the  singular  application  of  the  principle  asserted 
in  the  foregoing  cases  to  that  of  Gosch,  before  same  Commission,  id.,  2713. 

2  Mr.  Frehnghuvsen,  Secv.  of  State,  to  Mr.  Mfonso,  Nov.  13,  1884,  153 
MS.  Dom.  Let.  194,  :Moore,  Dig.,  VI.  632;  Mr.  Porter,  Acting  Secy,  of  State, 
to  Messrs.  Kennedy  &  Shellaberger,  Jan.  4,  1SS7,  Sen:ite  Doc.  287,  57  Cong.,  1 
Se.5S.,  Moore,  Dig.,  VI,  633;  also  correspondence  with  the  Italian  Embassy, 
concerning  the  Ivnching  of  persons  of  Italian  origin  at  Tallulah,  La.,  1899, 
For.  Rel.  1899,  440-466,  id.,  1900,  715-731,  referred  to  also  in  Moore,  Dig., 
VI,  634-636. 

Numerous  cases  have  arisen  before  claims  commissions  where  it  har.  been 
asserted  that  persons  of  foreign  origin  who  had  merely  declared  their  intention 
to  become  American  citizens  should  be  regarded  as  such.  While  the  deci- 
sions have  not  been  uniform,  the  Commissioners  or  Lmpires  have  in  most  cases 
declared  that  a  declaration  of  intention  is  insufficient  to  enable  the  foreigner 
to  be  regarded  as  a  citizen  of  the  claimant  State  within  the  meaning  of  a  claims 
convention.  See  case  of  Kern,  Mexican-American  Commission,  Convention 
of  Julv  4,  1868,  Moore,  Arbitrations,  III,  2719;  Ca.--e  of  Perez,  before  same 
Commission,  id..  Ill,  2718 ;  Opinion  of  Thornton,  Umpire,  in  Case  of  Schreck, 
before  same  Commission,  id..  Ill,  2720.  See,  also,  Stevenson  Case,  British- 
Venezuelan  Commission,  1903,  Ralston's  Report,  438 ;  also  discussion  in  Ral- 
ston, Arbitral  Law,  107-109. 

481 


§  275]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

would  not  constitute  naturalization  according  to  the  laws  of  the 
United  States.^ 

Neither  the  United  States  nor  any  other  State  should,  as  a 
matter  of  policy  or  equity,  espouse  the  cause  of  one  who,  accord- 
ing to  its  own  laws,  has  by  residence  abroad  or  by  any  other  process 
expatriated  himself.^  Nor  should  the  State  of  origin  prefer  a 
claim  in  behalf  of  one  who,  according  to  the  laws  of  the  foreign 
State  of  residence,  has  voluntarily  become  naturalized.^  In 
the  latter  situation  the  fact  of  domicile  in  the  territory  of  a  foreign 
country  is  important  only  so  far  as  it  indicates  compliance  with 
one  of  the  conditions  prescribed  by  the  local  law  as  a  means  of 
perfecting  naturalization.  In  the  former  it  is  important  only 
so  far  as  it  indicates  conduct  which  the  law  of  the  State  of  origin 

1  In  1896,  the  Italian  Embassy  demanded  the  payment  of  indemnities  in 
behalf  of  the  heirs  of  three  Italian  subjects  who  had  been  lynched  at  Hahn- 
ville,  La.  It  was  contended  by  Mr.  Olney,  Secy,  of  State,  that  the  Federal 
Government  was  inclined  to  doubt  any  right  of  the  Italian  Government 
to  prefer  a  claim  against  the  United  States  because  the  victims  were  "not 
Italians  temporarily  residing  in  the  United  States,"  that  at  the  time  of  their 
death  they  apparently  intended  to  remain  in  the  United  States  permanently, 
that  they  were  performing  no  duties  as  subjects  of  Italy,  that  they  were 
successfully  evading  military  service  in  Italy,  and  that  by  qualifying  and 
becoming  electors  in  Louisiana,  according  to  its  Constitution  and  laws, 
they  had  become  citizens  of  that  State  and  eligible  to  hold  office.  The 
Italian  Ambassador,  Baron  Fava,  was  able  to  show  that  there  had  been  no 
evasion  of  military  service.  He  was  unwilling  to  admit  that  there  was  proof 
of  a  change  of  domicile,  notwithstanding  the  long  absence  of  the  victims 
from  Italy.  Finally,  he  protested  vigorously  that  declarations  of  intention 
to  become  American  citizens  together  with  the  qualifying  and  acting  as 
electors  in  Louisiana  (if  such  acts  were  proven  to  have  occurred)  did  not 
change  the  nationality  of  the  victims,  or  constitute  naturalization  accord- 
ing to  Section  2165  of  the  Revised  Statutes,  and  hence  did  not  preclude  the 
Italian  Government  from  preferring  a  claim  for  indemnity.  The  Act  of 
Congress  that  ultimately  provided  for  the  payment  of  an  indemnity  referred 
to  the  decedents  as  subjects  of  Italy.  See  30  Stat.  106;  also  For.  Rel.  1896, 
396-422,  Moore,  Dig.,  Ill,  344-353. 

Cf.,  also,  case  of  three  Italian  subjects  murdered  in  Colorado,  in  1895,  on 
account  of  whose  death  an  indemnity  wa=!  paid  to  the  Italian  Embassy  in 
1893,  although  two  of  the  decedents  had  declared  their  intention  to  become 
American  citizens.  For.  Rel.  1895,  II,  938-956;  id.,  1896,  426,  Moore,  Dig., 
Ill,  344. 

Declares  Mr.  Ralston:  "A  declaration  of  intention  may,  nevertheless, 
have  effect  in  divesting  the  citizens  or  subjects  of  certain  nations  of  their  right 
to  claim  national  protection;  at  least  it  may  be  strong  evidence  of  such  a 
state  of  mind  or  fact  as  forfeits  the  right  of  appeal  to  the  nation  of  their  origin." 
Ralston,  Arbitral  Law,  109,  citing  the  Deucatte  Case,  French-American  Com- 
mission, convention  of  .Jan.  15,  1880,  Moore,  Arbitrations,  III,  2582. 

See,  also,  argument  of  Mr.  Ashton,  Agent  and  Counsel  of  the  United  States, 
in  brief  filed  before  Mexican-American  Commission,  Convention  of  July  4, 
1868,  Moore,  Arbitrations,  III,  2696. 

"^  See  Sec.  2  of  the  Act  of  March  2,  1907,  in  reference  to  the  expatriation  of 
citizens  and  their  protection  abroad,  34  Stat.  1228. 

^  Argument  of  Mr.  Ashton,  Agent  and  Counsel  of  the  United  States,  in 
brief  filed  before  Mexican-American  Commission,  Convention  of  July  4, 
1868,  Moore,  Arbitrations,  III,  2696,  2698-2699. 

482 


ASSIGNMENT  OF  CLAIMANT'S  INTERESTS        [§  276 

declares  shall  result  in  the  loss  of  nationality,  or  of  the  right  to 
claim  protection.  The  fact  of  domicile  appears  otherwise  to  be 
without  significance/ 

(2) 

§  276.   Assignment  of  Claimant's  Interests. 

It  is  believed  to  be  a  settled  rule  of  the  Department  of  State 
that  a  claim  which  the  United  States  cannot  take  cognizance  of 
in  its  inception,  because  of  the  alienage  of  the  claimant,  is  not 
brought  within  its  cognizance  by  an  assignment  to  an  American 
citizen.^  The  same  principle  has  been  followed  bj^  courts  of 
arbitration.^  There  seems  to  be  no  objection,  however,  to  the 
preferment  of  a  demand  for  redress  in  behalf  of  a  citizen  who  is 
the  assignee  of  the  rights  of  an  assignor  of  the  same  nationality.^ 

1  This  principle  has  been  appHed  to  cases  where  the  individual  was  domiciled 
in  a  country  engaged  in  war,  and  against  which  there  was  preferred  a  claim 
arising  from  the  consequences  of  military  operations.  See  Case  of  Barclay, 
British-American  Claims  Commission,  treaty  of  May  8,  1871,  Moore,  Arbi- 
trations, III,  2721.  Compare  Case  of  Laurent,  British-American  Claims 
Commission,  Convention  of  Feb.  8,  1853,  Moore,  Arbitrations,  2671. 

2  The  language  in  the  text  is  substantially  that  employed  in  a  communi- 
cation of  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Denbv.  Minister  to  China,  No. 
42,  Feb.  5,  1886,  MS.  Inst.  China,  IV,  118,  Moore,'Dig.,  VI,  639.  See,  also, 
Mr.  Evarts,  Secv.  of  State,  to  Mr.  Hodgskin,  Oct.  25,  1877,  120  MS.  Dom. 
Let.  238,  Moore,  Dig.,  VI,  638;  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Mc- 
Donald, Minister  to  Persia,  Nov.  11,  1893,  For.  Rel.  1894,  485,  Moore,  Dig., 
VI,  639.  Also,  Department  of  State,  General  Instructions  for  Claimants, 
revision  of  Jan.  30,  1920,  Section  6. 

The  rule  announced  does  not  concern  the  situation  where  a  foreign  con- 
cessionaire transfers  his  concession,  capable  of  assignment,  to  an  American 
citizen,  who  upon  the  violation  of  his  rights  thereunder  by  the  grantor  State, 
invokes  the  aid  of  the  United  States.  Mr.  Hav,  Secv.  of  State,  to  Mr.  Powell, 
Minister  to  Haiti,  No.  291,  Dec.  23,  1898,  MS.  Inst.  Haiti,  IV,  103,  Moore, 
Dig.,  VI,  639;  also  Eldredge's  Case,  American-Peruvian  Commission,  Con- 
vention of  Jan.  12,  1863,  Moore,  Arbitrations,  IV,  3460. 

^  Thornton,  Umpire,  in  L.  S.  Hargous  Case,  Mexican-American  Com- 
mission, Convention  of  July  4,  1868,  Moore,  Arbitrations,  2327,  2329 ;  Par- 
rott  and  Wilson  Case,  Mexican-American  Commission,  Convention  of  April 
11,  1839,  i(i.,  2381;  .same  case  before  Mexican  Claims  Commission,  Act  of 
Cong.,  of  March  3,  1849,  id.,  2384;  Slocum  Case,  before  same  Commission, 
id.,  2385;  Dimond  Case  before  .same  Commls.sion,  id.,  2386;  J.  F.  Lasarte 
Case,  American-Peruvian  Commisi^ion,  Convention  of  Jan.  12,  1863,  id., 
2394-2396;   see,  also,  cases  cited  in  Ralston,  Ar])itral  Law,  103. 

^Declares  Prof.  Moore:  "The  principle  that  the  right  of  intervention 
cannot  be  transferred  by  the  assignment  of  a  claim  by  the  citizen  of  one  coun- 
try to  the  citizen  of  another  is  altogether  independent  of  the  assignability 
of  diplomatic  claims  as  between  citizens  of  the  same  country,  where  nothing 
but  the  private  interest  passes.  [Judson  v.  Corcoran,  17  How.  612.]"  Dig., 
VI,  639.  See  Camy  Case,  French-American  Commission,  Convention  of 
Jan.  15,  1880,  Moore,  Arbitrations,  III,  2399;  H.  G.  Norton  Case,  Mrxicrn 
American  Commission,  Convention  of  July  4,  1868,  id.,  2163 ;  The  Sir  William 
Peel,  British-American  Claims  Commission,  treaty  of  Ma}'  8,  1S71,  id.,  IV, 
3935,  3948. 

483 


§  276]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

Xor  can  there  be  doubt  that  a  claim  against  a  foreign  govern- 
ment is  assignable.^ 

(3) 

§  277.    Partnership  Associations. 

A  citizen  by  adopting  a  foreigner  as  a  partner  cannot  spread 
over  him  the  protection  of  the  government  of  the  former.^  The 
preferment  of  a  claim  in  behalf  of  a  partnership  should  be  solely 
on  account  of  those  members  thereof  who  are  nationals  of  the 
claimant  State.^     Nor  can  a  foreign  partner  evade  the  operation 

IE.  M.  Borchard,  Diplomatic  Protection,  §  290,  and  documents  there  cited. 

2  The  language  of  the  text  is  substantially  that  contained  in  a  communica- 
tion of  Mr.  Fish,  Secy,  of  State,  to  Mr.  De  Long,  Sept.  19,  1871,  MS.  Inst. 
Japan,  1,  472,  Moore,  Dig.,  VI,  641.  See,  also,  Thomas  Morrison  Case, 
Mexican  Claims  Commission,  under  Act  of  Cong.,  of  March  4,  1849,  Moore, 
Arbitrations,  2325;  Campbell  v.  Mullett,  2  Swanston,  551,  Moore,  Dig.,  VI, 
640. 

3  In  the  Canevaro  Case,  under  an  Italian-Peruvian  agreement  of  April 
25,  1910,  three  questions  were  submitted  to  the  Court  assembled  at  the  Hague  : 
first,  whether  the  Peruvian  Government  ought  to  pay  in  coin  or  in  accordance 
with  the  provisions  of  the  Peruvian  law  on  the  domestic  debt  of  June  12, 
1889,  certain  drafts  possessed  by  the  brothers  Napoleon,  Carlo  and  Raphael 
Canevaro,  and  drawn  by  the  Peruvian  Government  to  the  order  of  the  firm 
of  Jose  Canevaro  &  Son,  for  the  sum  of  43,140  pounds  sterling,  plus  the  legal 
interest  upon  the  said  amount ;  secondly,  whether  the  Canevaro  brothers  were 
entitled  to  demand  the  total  of  the  amount  claimed ;  and  thirdly,  whether 
Count  Raphael  Canevaro  had  the  right  to  be  considered  as  an  Italian  claim- 
ant. The  debt  giving  rise  to  the  claim  was  created  by  a  decree  in  1880,  follow- 
inw  which  pay  checks  (bons  de  paiement.  lihramientos)  were  issued  to  the  order 
of 'the  firm  of  Jose  Canevaro  &  Sons  for  77,000  pounds  sterling,  payable  at 
different  periods,  of  which  35,000  pounds  sterling  were  paid  in  1885.  The 
firm  was  of  Peruvian  nationality  by  reason  of  the  Peruvian  nationality  of  its 
members  and  continued  in  existence  until  the  death  of  Jo.e  Francisco  Cane- 
varo in  1900.  The  Court  at  the  outset  announced  that :  "whatever  Raphael 
Canevaro's  status  may  be  in  Italy  with  respect  to  his  nationality,  the  Govern- 
ment of  Peru  has  a  right  to  consider  him  as  a  Peruvian  citizen  and  to  deny 
his  status  as  an  Italian  claimant."  This  was  due  to  the  fact  that  he  had  on 
several  occasions  acted  as  a  Peruvian  citizen,  both  by  running  as  a  candi- 
date for  the  Senate,  to  which  none  were  admitted  except  Peruvian  citizens, 
and  where  he  also  went  to  defend  his  election,  and  also  especially  by  accepting 
the  office  of  Consul  General  of  the  Netherlands,  after  having  solicited  the 
authorization  of  the  Peruvian  Government  and  Congress. 

The  other  claimants,  Napoleon  and  Carlo  Canevaro,  were,  however,  of 
Italian  nationality.  Their  interest  in  the  firm  claim  of  Jose  Canevaro  & 
Sons  arose  after  the  act  complained  of  —  the  law  of  June  12,  1889,  substi- 
tuting one  per  cent,  bonds  in  payment  of  the  domestic  debt ;  and  their  claim 
was  derived  by  inheritance  from  Jose  Canevaro.  The  Court  declared  that 
the  Canevaro  brothers  could  not  enjoy  more  favorable  treatment  than  the  firm, 
even  if  they  were  regarded  as  the  heirs  of  Jose  Francisco  Canevaro ;  that  the 
situation  was  unchanged  by  the  fact  that  Italians  had  succeeded  to  a  Peru- 
vian claim.  Hence,  being  subjected  to  the  Peruvian  law  of  1889,  it  was  de- 
creed that  their  portion  of  the  unpaid  balance  of  the  principal  indebtedness 
should  be  payable  in  bonds  rather  than  in  poimds  sterling.  It  was  ordered, 
however,  that  the  interest  after  Jan.  1st,  1889,  should  be  pavable  in  gold. 
The  case  presents  four  noteworthy  points :  first,  the  recognition  of  the  Pe- 
ruvian nationality  of  Raphael  Canevaro;  secondly,  the  consequent  denial 
of  the  right  of  Italy  to  interpose  in  his  behalf;  thirdly,  the  willingness  on  the 

4S4 


PARTNERSHIP  ASSOCIATIONS  [§  277 

of  this  principle  by  the  assignment  of  his  interest  in  a  claim  of 
the  firm  to  his  co-partners  who  are  nationals  of  the  State  which 
contemplates  interposition.^ 

The  fact  that  an  American  citizen  enters  into  a  partnership  with 
foreigners  whose  business  is  established  in  a  foreign  State  (either 
their  own  or  any  other),  so  as  to  be  regarded  as  domiciled  there- 
in, does  not  affect  his  right  or  that  of  the  United  States  acting 
in  his  behalf  to  regard  his  individual  interest  in  the  firm  as  essen- 
tially American  property,  entitled  to  the  same  protection  as  any 
other  such  property  similarly  located.  The  opinions  of  arbi- 
trators appear  to  sanction  this  view.^  Even  when  the  partner- 
ship according  to  the  law  of  the  country  where  it  is  established 
is  regarded  as  a  juridical  entity  possessing  functions  similar  to 
those  of  a  corporation,  the  United  States  does  not  hesitate  to 
espouse  the  cause  of  individual  members  who  may  be  American 
citizens  when  circumstances  necessitating  interposition  arise.' 

part  of  Peru,  for  whatsoever  reasons,  to  submit  to  arbitration,  the  scope  of 
its  duty  to  pay  to  Itahan  subjects,  an  obligation  derived  by  inheritance  from 
a  Peruvian  citizen;  and  fourthly,  the  definite  decision,  that  those  subjects 
were  in  no  more  favorable  position  than  their  Peruvian  predecessor,  and 
were  subject  in  like  manner  to  the  operation  of  the  domestic  law.  For  text 
of  the  award,  see  G.  G.  Wilson,  Hague  Arbitration  Cases,  242 ;  J.  B.  Scott,  Hague 
Court  Reports,  522;  Am.  J.,  VI,  746.  Concerning  the  case,  see  Editorial 
Comment,  id.,  VI,  709,  also  C.  De  Boeck,  in  Rev.  Gen.,  XIX,  317-372. 

1  Thornton,  Umpire,  L.  S.  Hargous  Case,  Mexican-American  Commis- 
sion, Convention  of  July  4,  1868,  Moore,  Arbitrations,  III,  2327;  also,  con- 
cerning same  case,  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Hargous,  June  14,  1890, 
178  MS.  Dom.  Let.  38,  Moore,  Dig.,  VI,  641. 

-  See  Ruden  Case,  Peruvian  Claims  Commission,  Convention  of  Dec.  4, 
1868,  Moore,  Arbitrations,  II,  1653,  1654,  where  the  Umpire  said  :  "If  it  may 
be  said  that  business  firms  have  a  nationality,  such  nationality  is  that  of  the 
country  in  whose  territory  they  reside,  under  whose  laws  they  have  been 
formed,  and  by  which  they  are  governed." 

See,  also,  dictum  of  Thornton,  Umpire  in  the  Case  of  Jennings,  Laugh- 
land  &  Co.,  Mexican-American  Commission,  Convention  of  July  4,  1868, 
Moore,  Arbitrations,  III,  3135,  3136;  Wm.  Homan  Case,  Mexican  Claims 
Commission,  Act  of  Cong.,  of  March  3,  1849,  id.,  3409. 

"Other  claims  [in  addition  to  that  shown  in  the  Case  of  Massardo,  Car- 
bone  &  Co.,  Italian-Venezuelan  Commission,  1903,  Ralston's  Report,  703] 
in  the  condition  of  having  diver.se  citizenship  among  the  members  of  the  part- 
nership were  presented  before  the  Italian-Venezuelan  Commission  [1903], 
and  awards  were  given  proportionate  to  the  amount  of  the  Italian  interest, 
no  suggestion  having  been  made  on  the  part  of  Venezuela  that  their  domicil 
in  Venezuela  had  created  Venezuelan  citizenship  in  the  partnerships."  Ral- 
ston, Arbitral  Law,  89.  See,  also,  Baasch  &  Romer  Case,  Netherlands-Ven- 
ezuelan Commission,  1903,  Ralston's  Report,  906.  Contra,  dictum,  in  L.  H. 
Finn  Case,  United  States- Venezuelan  Commission,  Convention  of  Dec.  5, 
1885,  Moore,  Arbitrations,  III,  2348. 

^  According  to  a  protocol  concluded  between  the  United  States  and 
Chile  Dec.  1,  1909,  the  so-called  Alsop  Claim  was  submitted  to  His  Maj- 
esty, King  Edward  VII,  as  an  "amiable  compositeur",  to  determine  what 
amount,  if  any,  was  equitably  due  to  the  claimants.  King  George  V  con- 
sented to  act  in  place  of  his  late  Majesty.  The  firm  of  Alsop  and  Co.  was 
registered  in  Chile,  its  seat  of  busine.ss  being  in  Valparaiso,  but  it  was  com- 

485 


§278]  RIGHTS  AND   DUTIES   OF  JURISDICTION 

(4) 
Corporations 

(a) 
§  278.   Interposition  in  Behalf  of  a  Corporation. 

It  is  declared  to  be  well  settled  that  a  government  may 
intervene  in  behalf  of  a  company  incorporated  under  its  laws, 
or  under  the  laws  of  a  constituent  State  or  province.  In  such 
case  the  act  of  incorporation  is  considered  as  clothino;  the  arti- 
ficial person  thereby  created  with  the  nationality  of  its  creator, 
without  regard  to  the  citizenship  of  the  individuals  by  whom 
the  securities  of  the  company  may  be  owned.  Hence  we  find 
in  general  claims  conventions  that  the  submission  or  settle- 
ment uniformly  embraces  "all  claims  on  the  part  of  corpora- 
tions, companies,  or  private  individuals,  citizens  of  the  United 

posed  of  American  citizens.  The  claim  arose  out  of  a  contract  made  with 
BoUvia  in  1876,  by  the  liquidator  of  the  firm,  one  Wlieelright,  for  the  ad- 
justment of  a  debt,  based  upon  previous  transactions  between  the  Bolivian 
Government  and  a  Brazilian  citizen  who  had  assigned  it  to  Alsop  &  Co. 

This  claim  had  been  submitted  to  the  United  States  and  Chilean  Claims 
Commission,  Convention  of  May  24,  1897,  but  had  been  disallowed,  on  the 
ground  that  as  Alsop  &  Co.  was  a  firm  organized  as  a  partnership  under  the 
Chilean  law,  it  had  become  a  juridical  entity  possessing  Chilean  nationality. 
It  had  been  held,  therefore,  that  the  firm  must  be  regarded  as  a  citizen  of 
Chile,  incapable  of  prosecuting  a  claim  against  Chile  as  an  American  citizen 
before  an  International  Commission  (Henry  Chauncey  v.  Chile,  No.  3,  United 
States  &  Chilean  Claims  Commission,  1901,  The  Alsop  Claim,  Appendix 
to  the  Case  of  the  United  States,  II,  558-569,  Moore,  Dig.,  Ill,  802.). 

In  the  Arbitration  before  King  George,  the  Chilean  Government  again 
suggested  that  as  the  firm  was  registered  in  Chile  and  was  a  Chilean  company, 
their  grievances  could  not  properly  be  the  subject  of  a  diplomatic  claim,  and 
that  the  claimants  should  be  referred  to  the  Chilean  courts  for  the  establish- 
ment of  any  rights  they  might  possess.  The  learned  commissioners  to  whom 
His  Majesty  referred  the  case  declared,  in  their  Report  accepted  by  him  as 
his  award,  that  this  contention  would  be  inconsistent  with  the  very  terms  of 
the  reference  to  the  King,  as  it  would  "practically  exclude  the  possibility 
of  any  real  decision  on  the  equities  of  the  claim  put  forward."  They  added 
that  they  were  "clearly  of  opinion,  by  looking  to  the  terms  of  the  reference 
and  to  all  the  circumstances  of  the  case,  that  such  a  contention,  if  intended 
to  be  seriously  put  forward  by  Chile,  should  be  rejected.  We  think  that  it 
may  be  disregarded  by  Your  Majesty."  Award  pronounced  by  His  IMajesty, 
King  George  V,  as  "amiable  compositeur"  in  the  matter  of  the  Alsop  Claim 
at  London,  July  5,  1911,  Washington,  1911,  9-10.  Am.  J.,  V,  1079,  1085.  See, 
also,  case  presented  by  the  Government  of  Chile,  London :  1910,  Part  III, 
"Locus  Standi  of  Alsop  &  Co.  and  of  the  United  States",  7-13.  It  should 
be  observed  that  the  United  States  interposed  specifically  and  by  name,  "for 
the  persons  who  had  composed  the  firm  or  their  representatives  and  not  for 
the  firm  itself."  See  Opinion  of  J.  Reuben  Clark,  Jr.,  Solicitor  to  the  Dept. 
of  State,  Aug.  14,  1912,  respecting  the  "Distribution  of  the  Alsop  Award  ", 
Washington,  1912,  46-53. 

See  Award  of  President  Cleveland,  March  2,  1897,  in  the  Cerruti  Case, 
Protocol  between  Italy  and  Colombia  of  Aug.  18, 1894,  Am.  J.  VI,  1015,  1016 ; 
compare  Report  of  Segismundo  Moret,  Jan.  26,  1888,  in  the  same  case,  Proto- 
col between  the  same  countries  of  May  24,  1886,  id.,  1003,  1011. 

486 


NATIONALS   AS    SHAREHOLDERS  [§  279 

States ",  or  of  some  other  government,  as  the  case  may  be. 
In  other  words,  the  corporation  is  recognized  as  having,  for 
purposes  of  diplomatic  protection,  the  citizenship  of  the  country 
in  which  it  is  created.^ 

There  appears  to  be  no  disposition  on  the  part  of  the  Depart- 
ment of  State  to  question  the  soundness  of  the  foregoing  state- 
ment, or  to  act  on  a  different  principle.^  Nevertheless,  as  a  matter 
of  domestic  policy,  the  United  States  may  be  unwilling  to  pro- 
tect the  interests  of  an  American  corporation  of  which  all  of  the 
shareholders  are  aliens  and  nationals  of  the  State  in  opposition 
to  which  protection  is  sought,  and  in  whose  territory  the  cor- 
poration carries  on  its  principal  operations.' 


(b) 

§  279.   Interposition  in  Behalf  of  Shareholders  or  Bond- 
holders. 

The  solution  of  the  question  whether  a  State  may  reasonably 
interpose  to  protect  the  interests  of  its  nationals  who  are  share- 
holders or  bondholders  of  a  corporation  incorporated  in  a  foreign 
State  appears,  according  to  American  opinion,  not  to  be  neces- 
sarily tested  by  any  single  theory  respecting  the  nationality  of  a 

1  Statement  in  Moore,  Dig.,  VI,  641.  See,  also,  Mr.  Olney,  Secy,  of  State, 
to  Mr.  Sleeper,  Minister  to  Colombia,  Feb.  24,  1897,  For.  Rel.  1899,  228, 
Moore,  Dig.,  VI,  642.  Also,  794-796;  National  Character  m  Relation  to 
Property  at  Sea  in  Time  of  War,  Corporations,  infrn,  §§  795-796. 

2  See,  for  example,  Mr.  Knox,  Secv.  of  State,  to  Mr.  Arnold,  American 
Consul,  No.  80,  April  25,  1910,  For.  Rel.  1910,  197.  Also  Section  5  of  Claims 
Circular  of  1919. 

3  Mr.  Adee  (for  Mr.  Knox,  Secy,  of  State),  to  Mr.  Bergholz,  American 
Consul  General,  No.  191,  Oct.  12,  1909,  For.  Rel.  1909,  67,  with  respect  to  a 
missionary  society  incorporated  in  California  in  1908.  A  majority  of  the 
incorporators  were  described  in  the  articles  of  incorporation  as  residents  and 
citizens  of  California.  All,  however,  were  of  the  Chinese  race.  The  society 
had  appointed  as  agents  in  China,  five  Chinese  persons,  no  one  of  whom  was 
an  American  citizen.  It  had  acquired  land  in  China  and  desired  protection  as 
an  American  missionary  society.  Mr.  Adee  (referring  to  a  previous  instruc- 
tion of  the  Department)  declared:    "The  Department  is  of  the  opinion  that 

the Society,  as  it  represents   itself   in   China,  does  not  seem  to 

represent  sufficient  Arnerican  interests  to  entitle  it  to  the  protection  of  this 
Government,  nor  does  it  seem  to  fall  within  the  spirit  of  the  provisions  of  the 
treaties  with  regard  to  the  privileges  of  American  missionary  societies.  The 
Department  deems  it  advisable,  therefore,  to  require  more  convincing  proof 
of  the  citizenship  of  the  incorporators  of  the  society  and  of  the  persons  at 
present  holding  the  controlling  interest  therein.  And  further,  in  view  of  the 
actual  situation  in  China,  it  is  deemed  desirable  to  require  the  American 
missionary  societies  to  employ  American  citizens  (not  necessarily  Caucasians) 
as  their  principal  and  responsible  agents  in  China  if  they  wish  to  obtain  Ameri- 
can protection." 

487 


§  279]         RIGHTS   AND   DUTIES   OF    JURISDICTION 

corporation.  The  conflict  of  opinion  between  the  publicists  of 
America  and  England  on  the  one  side,  and  those  of  continental 
Europe  on  the  other,  as  to  the  correct  basis  of  nationality/  al- 
though persistent  and  doubtless  illuminating,  has  not  served  to 
convince  statesmen  that  any  technical  rule  should  deter  them 
from  looking  behind  the  corporate  entity  when  the  bo7ia  fide  and 
substantial  interests  of  their  countrymen  in  foreign  territory 
have  required  protection  or  governmental  representation. 

The  Department  of  State  has  not  infrequently  been  confronted 
with  the  general  problem.  Mr.  Seward,  as  Secretary  of  State 
in  1866,  in  respect  to  the  case  of  the  Antioquia,  seemed  to  deny 
the  propriety  of  interposition  in  behalf  of  American  shareholders 
in  a  foreign  corporation.^  In  1884,  IMr.  Frelinghuysen,  Secretary 
of  State,  appeared  to  share  his  view.^  Later  opinions  of  the  De- 
partment of  State,  manifested  in  the  case  of  the  Delagoa  Bay 
Railway,  and  in  that  of  the  Salvador  Commercial  Company,  were, 
however,  to  the  effect  that  certain  circumstances  might  arise 
where  interposition  became  justifiable. 

The  case  of  the  Delagoa  Bay  Railway  related  to  a  railway  be 
longing  to  a  Portuguese  corporation  of  which  practically  the  entire 
stock  and  bonds  had  been  owned  by  one  MaciNIurdo,  an  American 
concessionaire,  who  had  assigned  the  same  to  an  English  corporation, 
receiving  in  exchange  its  entire  issue  of  stock  and  an  undertaking 
to  pay  him  a  lump  sum.  The  English  company  thereupon  issued 
bonds  in  order  to  pay  that  sum,  as  w^ell  as  to  build  the  railway 
concerned.  Following  a  controversy  as  to  the  extension  of  the 
line,  the  Portuguese  Government  in  1899  seized  the  railway  and 
canceled  the  concession.  Both  the  United  States  and  Great 
Britain  protested.  Notwithstanding  the  contention  of  Portugal 
that  it  could  only  recognize  the  Portuguese  company  which  had 
the  power  of  appealing  for  protection  to  the  law  of  Portugal,  that 
State  finally  agreed,  in  1891,  to  refer  to  arbitration  the  amount 
of  compensation  due  to  the  American  and  British  claimants  as  a 

'  Attention  is  called  to  the  thorough  discussion  of  the  nationality  of  corpora- 
tions and  the  diversity  of  the  opinions  still  prevailing,  contained  in  E.  M. 
Borchard,  Diplomatic  Protection,  §§  277-282. 

2  See  communication  to  Mr.  Burton,  Minister  to  Colombia,  April  27, 1866, 
Dip.  Cor.  1866,  III,  522,  Moore,  Dig.,  VI,  644.  It  should  be  noted  that  it 
appeared  from  this  despatch  that  there  was  abundant  reason  why  interposi- 
tion should  be  withheld  apart  from  the  circumstance  that  the  corporation 
was  a  foreign  one,  even  though  some  of  its  stockholders  were  American  citi- 
zens. 

^  Communication  to  Mr.  Phelps,  Minister  to  Peru,  Dec.  6,  1884,  MS.  Inst. 
Peru,  XVII,  101,  Moore.  Dig.,  VI,  646.  See,  also,  dictum  of  Bertinatti,  Um- 
pire, in  the  Accessory  Transit  Co.  Case,  United  States-Costa  Rican  Coni- 
miesion,  Convention  of  July  2,  1860,  Moore,  Arbitrations,  II,  1562. 

488 


CASE    OF    SALVADOR    COMMERCIAL    CO.  [§  279 

consequence  of  the  rescission  of  the  concession  of  the  railway  and 
the  taking  possession  of  its  property.  There  was  an  award  of 
damages.^  In  one  sense  the  agreement  to  arbitrate  was  more 
important  than  the  decision  of  the  tribunal.  The  former  was  a 
yielding  to  the  assertion  by  the  United  States  and  Great  Britain 
of  a  right  to  interpose  in  behalf  of  their  nationals  interested  in  a 
Portuguese  corporation.  The  latter  was  a  determination  of  the 
extent  of  the  harm  done  to  those  nationals  through  the  wrong- 
ful conduct  of  the  territorial  sovereign.  The  decision  itself  is, 
therefore,  without  value  as  a  judicial  precedent  respecting  the 
propriety  of  interposition. 

In  the  claim  of  the  Salvador  Commercial  Company  against 
Salvador,  it  appeared  that  that  corporation,  incorporated  in 
California,  together  with  certain  American  citizens  were  the 
principal  owners  of  a  Salvadorean  corporation  styled  "  El  Triunfo 
Company."  The  practical  destruction  or  cancellation  of  the 
franchise  of  the  latter  by  arbitrary  and  illegal  action  on  the  part 
of  the  Salvadorean  Government  resulted  in  interposition  by  the 
United  States.  According  to  the  terms  of  a  protocol  of  an  agree- 
ment to  arbitrate,  of  December  19,  1901,  the  issue  presented 
was  whether  any  liability  rested  upon  the  respondent  State 
with  respect  to  the  Salvador  Commercial  Company  or  to  any 
American  citizens.^  Two  arbitrators,  constitutmg  a  majority  of 
the  court,  concluded  that  the  action  of  Salvador  illegally  directed 
against  a  domestic  corporation  served  to  paralyze  the  efforts  of 
American  shareholders  to  save  it,  and  also  to  despoil  them  of  their 
interests  in  the  enterprise.  These  arbitrators  purposely  refrained 
from  discussing  in  their  opinion  the  right  of  the  United  States 
to  make  reclamation  for  the  American  shareholders  for  the  reason, 
they  declared,  "that  the  question  of  such  right  is  fully  settled 
by  the  conclusions  reached  in  the  frequently  cited  and  well- 
understood  Delagoa  Bay  Railway  Arbitration."  ^  As  that  ques- 
tion was  not  presented  to  the  tribunal  in  the  case  relied  upon, 
it  is  believed  that  the  foregoing  language  weakens  the  value  of 

1  Concerning  the  case  of  the  Delagoa  Bay  Railway,  see  Moore,  Arbitra- 
tions, 1865-1899;  Moore,  Dig.,  VI,  647-649;  For.  Rel.  1900,  845-849,  903- 
904.  Decision  and  final  award  of  March  29,  1900.  Cf.,  also,  Ralston,  Arbi- 
tral Law,  97-98. 

2  For.  Rel.  1902,  857.  Concerning  the  Salvadorean  case  generally,  see 
For,  Rel.  1902,  838-873,  embracing  opinion  of  W.  L.  Penfield,  Solicitor  of 
the  Dept.  of  State,  Award  of  the  Arbitrators  of  May  8,  1902,  and  separate 
opinion  of  same  date  of  Sir  Henry  Strong  and  Hon.  Don  M.  Dickinson,  con- 
stituting a  majority  of  the  tribunal ;  also  Moore,  Dig.,  VI,  649-651. 

3  For.  Rel.  1902,  859,  873,  Moore,  Dig.,  VI,  651. 

489 


§  279]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

the    opinion  of   the   arbitrators  in  the  Salvadorean  case,  as  to 
the  right  of  interposition.^ 

§  280.   The  Same. 

It  is  believed  that  the  Department  of  State  would  not  be 
reluctant  to  interpose  in  behalf  of  American  shareholders  or 
bondholders,  should  the  foreign  State  of  incorporation  irreparably 
injure  their  interests  through  illegal  conduct,  and  should  there 
be  offered  no  reasonable  means  of  obtaining  redress  through 
domestic  channels.  The  decision  as  to  interposition  might, 
however,  in  the  particular  case,  depend  upon  the  extent  of  the 
American  interest  involved.  Thus  it  might  be  regarded  as  essen- 
tial that,  as  measured  by  the  number  of  individuals  concerned, 
or  the  amount  of  capital  invested,  that  interest  should  represent 
a  substantial  proportion  of  the  stock  of  the  corporation  or  of  its 
bonded  indebtedness.^ 

In  the  event  of  arbitration  before  an  international  claims  com- 
mission, the  problem  arises  not  whether  a  claimant  State  may 
with  reason  espouse  the  cause  of  its  nationals  who  are  o^vners 
of  stock  or  bonds  of  a  foreign  corporation  (possibly  incorporated 
under  the  laws  of  the  respondent  State),  but  whether  the  con- 
vention providing  for  the  arbitration  fairly  embraces  the  claims 
of  such  individuals.^  Possibly  such  claims  may  be  fairly  said 
to  fall  within  the  scope  of  an  agreement  providing  for  the  arbitra- 
tion of  "all  claims  owned  by  citizens"  of  one  of  the  contracting 

1  Compare  opinion  of  Plumley,  Umpire,  in  the  Baasch  &  Homer  Case, 
Netherlands-Venezuelan  Commission,  1903,  Ralston's  Report,  906,  909- 
910,  where  it  was  declared  that  the  Commission  had  no  jurisdiction  over  the 
claim  of  the  liquidators  of  a  firm,  three  quarters  of  whose  members  were 
Dutch,  which  held  stock  to  the  amount  of  26,800  bolivars  in  a  Venezuelan 
corporation  of  which  the  paid-up  capital  was  240,000  bohvars.  The  claim 
was  based  upon  the  destruction  of  the  plant  of  the  latter  by  troops  in  com- 
mand of  General  Freites.  The  learned  Umpire  cited  P.  Arminjon,  '"Na- 
iionalite  des  personnes  morales" ,  in  Rev.  Droit.  Int.,  2  ser.,  IV,  381-440.  See, 
also,  Opinion  of  Paul,  Commissioner,  Kunhardt  &  Co.  Case,  American- 
Venezuelan  Commission,  1903,  Ralston's  Report,  63,  70;  Andor  Jacobi, 
"La  condition  juridique  des  societes  anonymes  etrangeres",  Int.  Law  Associa- 
tion, 27th  Conference,  Proceedings,  368,  379. 

-  There  is  no  intimation  in  the  General  Instructions  for  Claimants  of  1919, 
Revision  of  Jan.  30,  1920,  that  the  Department  of  State  would  take  a  different 
stand.  The  obvious  design  of  the  Questionnaire  appended  thereto  is  to  enable 
the  Department  to  ascertain  with  precision  the  extent  of  the  essentially 
American  interest  in  foreign  corporate  property  concerned. 

^  The  problem  of  interpretation  has  been  a  troublesome  one  for  arbitrators 
generally.  See,  for  example,  William  E.  Fuller,  Special  Report  on  work  of 
Spanish  Treaty  Claims  Commission,  Dept.  of  Justice,  1907,  28-30,  respecting 
Art.  VII  of  the  treaty  of  peace  between  the  United  States  and  Spain  of  Dec. 
10,  1898.  Also  discussion  in  E.  M.  Borchard,  Diplomatic  Protection,  §§281- 
282. 

490 


DENIAL  OF  JUSTICE  [§  281 

parties.^  It  is  believed,  however,  that  the  terms  of  the  agreement 
should  specify  with  greater  precision  than  has  heretofore  been 
manifest,  the  nature  and  extent  of  the  corporate  interests  to  be 
adjudicated.  In  a  word,  what  corporations,  what  shareholders, 
and  what  bondholders  are  to  be  deemed  to  be  entitled  to  the 
benefits  of  the  adjudication  should  be  definitely  established  by 
the  provisions  of  the  convention. 

e 

Grounds  of  Interposition 

(1) 

§  281.   Denial  of  Justice.     Exhaustion  of  Local  Remedies. 

Before  a  State  prefers  a  claim  in  behalf  of  an  aggrieved  citizen 
it  should  appear  that  the  foreign  territorial  sovereign  upon  which 
the  demand  for  redress  is  made  has  itself  been  guilty  of  a  denial 
of  justice.  A  denial  of  justice,  in  a  broad  sense,  occurs  when- 
ever a  State,  through  any  department  or  agency,  fails  to  observe, 
with  respect  to  an  alien,  any  duty  imposed  by  international  law  or 
by  treaty  with  his  country.  Such  delinquency  may,  for  example, 
be  manifest  in  arbitrary  or  capricious  action  on  the  part  of  the 
courts,  or  in  legislative  enactments  destroying  the  exercise  of  a 
privilege  conferred  by  treaty,  or  in  the  action  of  the  executive 
department  in  ordering  the  seizure  of  property  without  due  process 
of  law.^  The  conduct  of  the  State  may  either  be  the  direct  source 
of  complaint,  or  it  may  supplement  and  aggravate  the  conse- 

^  In  the  case  of  Kunhardt  &  Co.,  American-Venezuelan  Commission,  1903, 
Bainb ridge,  Commissioner,  declared  in  the  course  of  his  opinion  that  "While 
the  property  of  a  corporation  in  esse  belongs  not  to  the  stockholders  individ- 
uually  or  collectively,  but  to  the  corporation  itself,  it  is  a  principle  of  law 
universally  recognized  that,  upon  dissolution,  the  interests  of  the  several 
stockholders  become  equitable  rights  to  proportionate  shares  of  the  corporate 
property  after  the  payment  of  the  debts.  The  rights  of  the  creditors  and 
shareholders  to  the  real  and  personal  property  of  the  corporation,  as  well  as 
to  its  rights  of  contract  and  choses  in  action,  are  not  destroyed  by  dissolution 
or  liquidation.  .  .  .  Messrs.  Kunhardt  &  Co.,  as  citizens  of  the  United 
States  and  the  equitable  owners  of  their  proportionate  share  in  the  property 
of  the  dissolved  corporation,  have  a  standing  before  this  Commission  to  make 
claim  for  indemnity  for  such  losses  as  they  may  prove  they  have  sustained  by 
reason  of  the  wrongful  annulment  of  the  concession.  .  .  .  The  value  of  the 
corporate  shares  and  the  extent  of  a  shareholder's  interest  in  the  corporate 
property  are  absolutely  dependent  upon  the  relation  which  the  assets  of  the 
corporation  bear  to  its  liabilities."     Ralston's  Report,  63,  67,  and  68. 

2  See  excellent  statement  by  Eugene  Wambaugh,  Proceedinqs,  Am.  Soc. 
Int.  L.  (1910),  IV,  126,  128-129;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  McLane, 
Minister  to  France,  No.  134,  June  23,  1886,  MS.  Inst.  France,  XXI,  330, 
Moore,  Dig.,  VI,  266. 

491 


§  281]         RIGHTS   AND    DUTIES   OF   JURISDICTION 

quences  of  the  unlawful  acts  of  individuals,  as,  for  example,  on 
the  occasion  of  mob  violence  which  the  territorial  sovereign,  heed- 
less of  warning,  makes  no  serious  effort  to  suppress.^ 

The  term  denial  of  justice  is  also  not  unfrequently  employed 
in  a  narrower  sense  to  refer  to  the  failure  of  a  State  to  afford  a 
means  of  redress  by  judicial  process  to  the  individual  with  respect 
to  whom  it  has  already  failed  in  its  duty;  and  the  assertion  is 
made  that  no  denial  of  justice  occurs  until  the  aggrieved  alien  has 
exhausted  his  judicial  remedies,  and  the  territorial  sovereign 
charged  with  fault  has  again  been  found  wanting  through  the 
inadequacy  of  its  judicial  system.^  It  is  believed  that  this  con- 
tention betrays  confusion  of  thought.  Whether  the  act  of  a 
State  constitutes  a  denial  of  justice  depends  solely  upon  the  quality 
of  lawfulness  or  unlawfulness  which  international  law  attaches  to 
the  act,  and  not  upon  the  means  of  redress  afforded  the  individual 
against  whom  it  was  directed.  While  the  adequacy  of  those 
means  vitally  affects  the  propriety  of  interposition,  it  is  unrelated 
to  the  character  of  the  conduct  giving  rise  to  complaint. 

As  the  preferring  of  a  claim  implies  WTongfulness  of  action 
on  the  part  of  public  authority,  the  State  demanding  redress 
^  mu.st  always  be  prepared  to  show  that  the  territorial  sovereign 
jlis  responsible  for  the  acts  of  those  whose  conduct  is  the  source  of 
grievance.  The  inquiry  as  to  national  responsibility  is  distinct 
from  that  respecting  the  propriety  of  interposition.  The  dis- 
tinction has  not,  however,  always  been  apparent.  It  has  been 
asserted  in  substance,  that  the  responsibility  of  the  territorial 
sovereign  for  the  acts  of  a  particular  official  is  dependent  upon  the 
steps  taken  by  the  aggrieved  individual  to  exliaust  his  judicial 
remedies.^     This  contention  is  reasonable  when  the  act  complained 

1  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Angell,  Minister  to  Turkey,  Aug. 
23,  1897,  For.  Rel.  1897,  592,  Moore,  Dig.,  \T,  807.  According  to  Section 
8  of  the  Claims  Circular  of  1919:  "Unless  the  responsibility  for  the  loss  or 
injury  for  which  reparation  is  claimed  is  attributable  to  a  foreign  Govern- 
ment', efforts  of  the  Government  of  the  United  States  on  behalf  of  the  claimant 
will  be  futile.  It  is  essential,  therefore,  for  claimants  to  show  that  the  re- 
sponsibility for  their  losses  or  injuries  is  attributable  to  an  official,  branch, 
or  agency  of  a  foreign  Government." 

2  See,  for  example,  position  taken  by  Mexico  in  the  case  of  the  Rebecca, 
shown  especially  in  communication  of  Mr.  Mariscal,  Minister  of  Foreign 
Affairs,  to  Mr.  Jackson,  American  Minister,  April  2,  1886,  H.  Ex.  Doc.  No. 
328,  51  Cong.  41,  Moore,  Dig.,  VI,  GG8. 

3  See,  for  example,  Thornton,  Umpire,  in  Chas.  B.  Smith  Case,  Mexican- 
American  Commission,  Convention  of  July  4,  1868,  Moore,  Arbitrations 
III,  3146.  The  difficulty  is  increased  by  the  various  significations  perhaps  un- 
avoidably attached  to  the  same  terms.  Thus  in  the  foregoing  case  when  the 
learned  Umpire  declared  that  Mexico  was  not  "responsible"  for  the  "illegal" 
acts  of  inferior  judicial  authorities  in  the  absence  of  an  appeal  to  a  higher 
court,  he  doubtless  sought  to  express  the  opinion  that  no  absolute  duty  rested 

492 


lO 


DENIAL  OF  JUSTICE  [§  281 

of  is  not  in  itself  internationally  illegal.^  When,  however,  an 
agent  of  a  State  acting  within  the  scope  of  his  authority  commits 
an  internationally  illegal  act  with  respect  to  an  alien,  there  is  a 
denial  of  justice  on  the  part  of  the  State,  and  its  responsibility 
is  established."  The  establishment  of  responsibility  imposes  upon 
the  territorial  sovereign  the  duty  either  to  afford  the  victim  a 
means  of  obtaining  redress  by  some  reasonable  process,  or  in 
lieu  thereof,  to  make  reparation  upon  the  demand  of  the  State 
of  which  the  \'ictim  is  a  national.  The  propriety  of  interposition 
would,  therefore,  seem  to  depend  upon  which  alternative  the 
delinquent  State  has  chosen.  Thus,  in  the  examination  of  claims, 
it  becomes  important  to  distinguish  events  which  tend  to  show 
internationally  illegal  conduct  on  the  part  of  a  territorial  sov- 
ereign, from  those  which  tend  to  show  a  failure  on  its  part  to 
afford  a  means  of  redress  in  consequence  of  such  conduct.  The 
former  serves  to  establish  national  responsibility;  the  latter  tol 
justify  interposition. 

Whenever  a  State  is  charged  with  the  denial  of  justice  in  re- 
spect to  an  alien,  the  inquiry  presents  itself :  Is  there  evidence 
of  a  principle  of  law  recognized  in  the  practice]  of  nations,  making 
the  exhaustion  by  the  victim  of  local  remedies  capable  of  affording 

upon  that  State  to  respond  in  damages  until  the  aggrieved  aUen  himself  had 
exhausted  his  local  remedies.  The  Umpire  did  not  intend  to  suggest  tnat  the 
commission  of  an  illegal  act  by  an  official  of  whatsoever  rank  failed  to  im- 
pose upon  Mexico  a  duty  to  afford  a  means  of  redress.  The  duty  to  pay  an 
indemnity  to  an  aggrieved  alien  is  but  a  single  consequence  of  national  re- 
sponsibility which  particular  circumstances  may  impose.  The  duty  of  the 
territorial  sovereign  to  do  justice  by  some  process  whenever  through  any 
agency  it  wrongs  an  alien,  is  proof  of  a  responsibility  co-extensive  with  every 
form  of  national  delinquency..    Also,  Acts  of  Judicial  Officers,  infra,  §  287. 

1  It  frequently  happens  that  a  claim  finds  its  origin  in  acts  for  the  com- 
mission of  which  the  territorial  sovereign  is  not  to  be  held  internationally 
at  fault,  as  for  example,  where  the  actors  are  private  individuals,  for  whose 
conduct  the  State  may  not  be  responsible.  In  such  a  situation  no  ground 
for  interposition  arises  until,  through  failing  in  its  duties  of  jurisdiction,  as 
by  preventing  the  claimant  from  having  access  to  the  courts,  the  territorial 
sovereign  denies  justice. 

2  In  his  note  communicated  to  the  Mexican  Government  by  the  American 
Chargt'  d' Affaires,  under  date  of  Nov.  30,  1919,  in  relation  to  the  arrest  and 
prosecution  of  one  W.  O.  Jenkins,  an  American  Consular  Agent,  Mr.  Lan- 
sing, Secy,  of  State,  declared:  "The  Mexican  Government  maintains  that  it 
cannot  grant  the  request  of  the  United  States  for  Jenkins's  release  for  the 
reason  that  under  international  law  no  diplomatic  intervention  is  appropriate 
unless  a  denial  of  justice  has  occurred,  and  because  tlie  Mexican  Govern- 
ment is  not  in  a  position  to  demand  Jenkins's  release  in  view  of  the  separation 
of  the  executive  and  judicial  powers  under  the  Mexican  form  of  government, 
and  the  independence  of  the  State  courts,  by  one  of  which  Jenkins  is  held. 
The  succinct  answer  to  this  contention  is,  as  every  one  knows,  that  a  denial 
of  justice  has  already  taken  place,  and  also  because  the  Mexican  Constitution 
specifically  gives  the  Federal  tribunals  jurisdiction  of  'all  cases  concerning 
diplomatic  agents  and  consular  officers.'  "     New  York  Times,  Dec.  2,  1919. 

493 


§  281]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

complete   redress,    a   condition   precedent   to   just    interposition 
in  his  behalf  ? 

If  the  answer  be  affirmative,  numerous  instances  of  inter- 
position may  need  explanation  as  limitations  of  the  applicability 
of  the  rule;  and  the  operation  of  it  will  doubtless  appear  to  ex- 
clude, at  the  present  time,  a  large  variety  of  cases.  If  the  an- 
swer be  negative,  almost  all  instances  of  interposition  must  be 
attributed  to  the  domestic  policy  of  the  aggrieved  State,  and  its 
freedom  of  action  be  regarded  as  unfettered,  except  in  some  irrec- 
oncilable situations.  A  casual  glance  at  certain  declarations 
which  have  emanated  from  the  Department  of  State  as  well  as 
from  other  foreign  offices,  might  lead  to  the  conclusion  that  such 
an  answer  accurately  portrays  the  existing  practice  of  nations. 
Such  declarations  are,  however,  almost  invariably  dicta,  in  the 
sense  that  they  have  found  expression  (and  usually  the  most 
emphatic  expression)  on  occasions  when  interposition  was  a 
necessity  by  reason  of  the  impossibility  of  securing  redress  by 
any  other  process,  and  when,  therefore,  the  existence  of  the  prin- 
ciple suggested  was  not  at  issue.^  Inasmuch  as  the  reason  re- 
quiring the  exhaustion  of  local  remedies  in  certain  groups  of 
cases  is  capable  of  universal  application,  one  may  be  led  to  be- 
lieve that  the  preferment  of  claims  is  due  primarily  to  defects 
in  the  machinery  of  the  government  of  recalcitrant  States  rather 
than  to  any  other  consideration. 

§  282.   The  Same. 

The  principal  cause  of  the  frequency  of  cases  where  the  aggrieved 
alien  is  not  in  fact  obliged  to  exliaust  his  local  remedies  prior  to 
interposition,  is  the  failure  of  the  State  charged  with  wrongdoing 
to  make  provision  whereby  the  nature  of  its  own  conduct  may  be 
rigidly  scrutinized,  and  redress  accorded  when  that  conduct  is 
found  to  be  at  fault.  It  is  because  justice  is  not  to  be  had  in  any 
domestic  forum,  rather  than  on  account  of  the  nature  of  the  acts 
giving  rise  to  complaint,  that  interposition  is  oftentimes  the 
immediate  consequence  of  national  delinquency.  Where,  on 
the  other  hand,  the  territorial  sovereign  offers  ample  means  of 
obtaining  justice  by  judicial  process,  the  reason  for  interposition 
disappears,  and  the  detriment  to  the  society  of  nations  by  the  un- 
necessary transformation  of  a  domestic  issue  into  an  international 

1  See,  for  example.  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Buck,  Minister  to 
Peru,  No.  179,  Jan.  19.  1888,  MS.  Inst.  Peru,  XVII,  313,  Moore,  Dig.,  VI, 
254. 

494 


REASONS  FOR  RESTRAINT  [§  282 

one  suffices  to  establish  a  rule  of  practice.  The  existence  of 
such  a  rule,  however  obscured  by  the  frequency  of  the  occasions 
when  it  may  be  fairly  disregarded,  is  shown  not  only  by  its  appli- 
cability to  almost  every  situation  where  a  State  has  established 
adequate  machinery  for  righting  its  own  wrongs,  but  also  by  the 
increasing  tendency  of  States  to  insist  upon  its  observance.^  The 
United  States  generally  respects  the  rule  both  in  dealing  with 
American  claimants  and  in  regulating  its  interposition  in  their 
behalf.2 

The  natural  growth  of  this  tendency  of  restraint  in  the  pre- 
ferring of  claims  must  be  largely  dependent  upon  the  attitude 

1  The  Marquis  Saionji,  Japanese  Minister  of  Foreign  Affairs,  in  a  com- 
munication addressed  to  Mr.  Wilson,  American  Charge,  April  8,  1906,  de- 
clared that  during  the  period  of  consular  jurisdiction  in  Japan,  the  Gov- 
ernment was  not  infrequently  called  upon  to  consider  in  a  diplomatic  way 
questions  in  respect  of  which  unexhausted  judicial  remedies  existed ;  that 
disappointed  in  the  expectation  that  "this  irregular  and  unusual  practice 
would  cease  after  the  system  to  which  it  gave  birth  had  come  to  an  end", 
the  Government  deemed  it  necessary  to  establish  by  formal  notice  the  change 
in  practice.  He  said,  therefore,  that  ''the  Imperial  Government  will  be  un- 
able hereafter  to  regard  any  contentious  matter  in  respect  of  which  a  judicial 
remedy  exists  as  ripe  for  diplomatic  intervention  until  such  remedy  has  been 
completelv  exhausted  and  a  case  justifying  such  intervention  is  presented." 
For.  Rel.1906,  II,  1071. 

The  broadening  of  the  practice  of  the  withholding  of  interposition  will 
only  be  retarded  by  the  attempts  of  particular  States  to  check  by  contract 
the  right  of  the  resident  alien  to  invoke  the  aid  of  his  own  country,  or  to 
limit  by  legislation  the  circumstances  when  it  may  justly  interpose  in  his 
behalf.  To  the  outside  world  such  attempts  do  not  indicate  a  disposition 
to  mete  out  justice,  but  rather  a  desire  to  shield  the  territorial  sovereign  from 
the  consequences  of  its  own  wrongdoing.  Concerning  attempts  to  limit  in- 
terposition by  contract,  see  documents  in  Moore,  Dig.,  VI,  293-309  ;  concern- 
ing attempt  to  limit  such  action  by  legislation,  id.,  309-324 ;  also,  liarmodio 
Arias,  in  Am.  J.,  VII,  725,  761-762. 

^  Thus  according  to  Section  8  of  the  General  Instructions  for  Claimants, 
Revision  of  Jan.  30,  1920,  the  Department  of  State  declared:  "If  any  legal 
remedies  for  obtaining  satisfaction  for,  or  settlement  of,  the  losses  or  injuries 
sustained  are  afforded  by  a  foreign  Government  before  its  judicial  or  adminis- 
trative tribunals,  boards,  or  officials,  interested  persons  must  ordinarily  have 
recourse  to  and  exhaust  proceedings  before  such  tribunals,  boards,  or  officials 
as  may  be  established  or  designated  by  the  foreign  Government  and  open  to 
claimants  for  the  adjustment  of  their  claims  and  disputes.  After  such  reme- 
dies have  been  exhausted  with  the  result  of  a  denial  of  justice  attributable  to 
an  official,  branch,  or  agency,  of  a  foreign  Government,  or  have  been  found 
inapplicable  or  inadequate,  or  if  na  legal  remedies  are  afforded,  the  Depart- 
ment of  State  will  examine  the  claim  with  a  view  to  ascertain  whether,  in  all 
the  circumstances  of  the  case  and  considering  the  international  relations  of 
the  United  States,  the  claim  may  properly  be  presented  for  settlement 
through  diplomatic  channels,  by  arbitration  or  otherwise." 

"The  Department  is  not  disposed  to  coimsel  the  Nicaraguan  Govern- 
ment to  resist  demands  of  European  countries  through  diplomatic  channels 
for  the  direct  settlement  of  their  claims ;  but  if  the  Nicaraguan  Govern- 
ment of  its  own  initiative  should  decide  that  European  claimants  must  first 
exhaust  the  remedies  afforded  by  the  Nicaraguan  courts  or  other  local  tri- 
bunals, including  the  claims  commission,  the  Department  believes  that  in- 
ternational law  and  practice  furnish  ample  precedents  therefor."     Mr.  Knox, 

495 


§  282]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

of  each  State  with  respect  to  its  own  dehnquencies.  In  propor- 
tion to  the  sincerity  of  its  regret  for  its  own  shortcomings  will 
be  manifest  a  readiness  to  devise  means  to  afford  redress.  In 
so  far  as  complete  reparation  will  in  practice  prove  to  be  obtain- 
able through  domestic  channels,  cases  of  interposition  may  be 
expected  to  decrease  proportionally  in  frequency,  and  instances 
of  denial  of  justice  to  aliens  not  to  be  productive  of  international 
controversy  except  when  local  courts  have  utterly  failed  to  ob- 
serve the  law  of  nations. 

It  is  believed  to  be  of  highest  importance  to  observe  with  care 
the  theory  of  current  practice,  especially  that  followed  by  the 
United  States,  and  to  note  the  circumstances  when  national  de- 
linquency commonly  and  justly  causes  interposition,  as  well  as 
the  occasions  also  when  the  principle  demanding  the  exhaustion 
of  local  remedies  is  regarded  as  applicable  and  hence  obligatory. 

(2) 
When  Local  Remedies  Need  Not  Be  Exhausted 

(a) 

§  283.   When  Justice  is  Wanting. 

A  rule  requiring  the  exhaustion  of  local  remedies  prior  to  inter- 
position is  based  upon  the  assumption  that  "at  the  time  of  the 
injury  complained  of,  there  were  duly  established  courts  to  which 
resort  was  open  and  practically  available."  ^     When,  therefore, 

Secy,  of  State,  to  Mr.  Gunther,  American  Charge  d' Affaires,  Nov.  10,  1911, 
For.  Rel.  1911,  643  ;  Mr.  Adee,  Acting  Secy,  of  State  to  the  American  Charge 
d'Affaires  at  Madrid,  Oct.  10,  1911,  id.,  639. 

Declared  Mr.  Knox,  Secy,  of  State,  to  the  American  Charge  d'Affaires 
in  Mexico,  Aug.  17,  1911  :  "In  view  of  the  rule  of  international  law  requir- 
ing claimants  against  a  government  to  resort  to  local  tribunals  for  remedy 
in  the  matter  of  the  wrongs  which  they  allege,  the  Government  of  the  United 
States  could  obviously  have  no  ground  to  object  to  the  establishment  of  any 
appropriate  tribunal  or  the  endowing  of  any  existing  tribunal  with  the  au- 
thority to  hear  and  pass  upon  claims  of  American  citizens  for  losses  sustained 
during  the  recent  disturbed  conditions  in  that  country  [Mexico],  providing 
access  to  the  court  is  easy  and  prosecution  of  the  claims  before  the  court  is 
not  made  unduly  onerous.  The  Government  of  the  United  States,  therefore, 
would  be  incUned  in  the  first  instance  to  refer  its  citizens  to  any  appropri- 
ately constituted  tribunal  authorized  to  hear  and  determine  their  complaints." 
For.  Rel.  1912,  939.  See,  also,  Mr.  Wilson,  Acting  Secy,  of  State,  to  Mr. 
Wilson,  American  Ambassador,  April  8,  1912,  id.,  961 ;  Mr.  Carr,  for  Mr. 
Knox,  Secy,  of  State,  to  Mr.  Edwards,  American  Consul  at  Ciudad  Judrez, 
April  23,  1912,  id.,  963. 

1  The  language  quoted  in  the  text  is  that  of  Mr.  Bayard,  Secy,  of  State, 
in  a  communication  to  Mr.  Buck,  Minister  to  Peru,  No.  104,  Nov.  1,  1886, 
MS.  Inst.  Peru,  XVII,  252,  Moore,  Dig.,  VI,  267. 

Mr.  Knox,  Secy,  of  State,  in  a  communication  to  the  American  Ambassa- 
dor to  Mexico,  Jan.  18,  1912,  For.  Rel.  1912,  954,  while  acknowledging  that 

496 


WHEN  JUSTICE  IS  WANTING  [§  283 

the  State  of  an  aggrieved  citizen  has  reason  to  believe  that  justice 
is  not  to  be  had  by  any  process,  within  the  domain  of  the  terri- 
torial sovereign,  and  through  domestic  channels,  interposition 
does  not  lack  justification,  and  is  to  be  anticipated.^  This  is 
true  whether  the  claim  arises  from  contract  or  tort.  Illustrations 
have  been  frequent  and  varied.  Justice  has  been  deemed  to  be 
wanting  where  "  it  would  be  absurd  to  attempt  to  seek  it  by  judicial 
process  ",^  or  where  local  authorities  prevent  the  claimant  from 
making  out  his  case,^  or  where  the  courts  lack  power  to  denounce 
the  illegality  of  the  acts  of  another  department  of  the  territorial 
sovereign,^  or  where  the  invocation  of  judicial  aid  imposes  a  burden 
on  the  claimant  disproportional  to  the  redress  obtainable.^ 

If  the  existing  local  remedies  may  be  fairly  regarded  as  insuffi- 
cient, the  individual  claimant  will  not  be  compelled  by  his  own 
government  to  exhaust  them.  This  is  true  where  the  courts  are 
deemed  unworthy  of  respect  by  reason  of  their  knowTi  subserviency 
to  the  political  department,  or  of  their  habit  of  disregarding  the 
local  laws  or  existing  treaties,  or  well-defined  principles  of  inter- 
national law.^ 

"under  the  rules  of  international  law  local  remedies  should  be  exhausted", 
declared  that  the  Ambassador  was  not  precluded  from  "pressing  diplomati- 
cally" certain  specified  claims  for  an  early  consideration  by  a  local  Mexican 
Claims  Commission  (which,  he  stated,  "being  an  administrative  rather  than 
a  judicial  body,  apparently  may  be  approached  by  the  Executive  without 
incurring  the  objection  of  interference  with  the  judiciary"),  or  bj^  some  other 
duly  constituted  body. 

1  Mr.  Fish,  Secv.  of  State,  to  Mr.  Pile,  Minister  to  Venezuela,  Mav  29, 
1873,  MS.  Inst.  Venezuela,  II,  228,  Moore,  Dig.,  VI,  677;  Mr.  Bavard, 
Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  Sept.  7,  1886,  MS.'inst. 
Mexico,  XXI,  574,  Moore,  Dig.,  VI,  680;  Lord  Palmerston  in  the  House  of 
Commons,  June  25,  1850,  on  the  Case  of  Don  Pacifico,  Moore,  Dig.,  VI,  681. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  No.  54,  Dec. 
16,  1873,  MS.  Inst.  Mexico,  XIX,  48,  Moore,  Dig.,  VI,  975;  Case  of  Pradel, 
under  convention  between  the  United  States  and  Mexico  of  July  4,  1868, 
Moore,  Arbitrations,  3141 ;  Case  of  Donoughho,  under  same  convention, 
id.,  3012. 

3  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  Sept. 
7,  1886,  MS.  Inst.  Mexico,  XXI,  574,  IMoore,  Dig.,  VI,  680;  Lieber,  Um- 
pire, in  Garrison's  Case,  under  convention  between  the  United  States  and 
Mexico  of  July  4,  1868,  Moore,  Arbitrations,  III,  3129 ;  opinion  of  Mr.  Frazer, 
American  Commissioner,  respecting  certain  cases  before  the  American  and 
British  Claims  Commission  under  treaty  of  May  8,  1871,  Moore,  Arbitrations, 
3154,  3156;  Ballistini  Case,  French-Venezuelan  Commission,  1902,  Ralston's 
Report,  1903,  503,  504. 

*  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Buck,  Minister  to  Peru,  No.  179, 
Jan.  19,  1888,  MS.  Inst.  Peru,  XVII,  313,  Moore,  Dig.,  VI,  254. 

5  Mr.  Frelinghuvsen,  Secy,  of  State,  to  Mr.  Morgan,  Minister  to  Mexico, 
No.  570,  May  17,  1884,  For.  Rel.  1884,  358,  Moore,  Dig.,  VI,  679. 

^  See  Promemoria  of  the  German  Embassy  at  Washington,  Dec.  11,  1901, 
respectmg  conditions  in  Venezuela,  For.  Rel.  1901,  192,  Moore,  Dig.,  VI, 
692;  Mr.  Everett,  Secy,  of  State,  to  Mr.  Marsh,  Minister  to  Turkey,  No. 
24,  Feb.  5,  1853,  Senate  Ex.  Doc.  9,  33  Cong.,  2  Sess.,  5,  8,  9,  Moore,  Dig.,  VI, 

497 


§  283]  RIGHTS  AND  DUTIES  OF  .JURISDICTION 

In  theory,  the  nature  of  the  act  giving  rise  to  complaint  is  not 
necessarily  related  to  the  capacity  of  the  claimant  to  obtain  re- 
dress by  local  process.  In  practice,  however,  the  character  of 
the  grievance  or  of  the  authority  to  which  it  is  attributable  often- 
times appears  to  be  decisive  of  the  respect  with  which  local  remedies 
are  regarded  by  the  outside  world.  Thus  the  confiscatory  breach 
of  a  contract  committed  by  the  executive  department  of  the 
territorial  sovereign  shatters  confidence  in  the  local  judicial 
system  and  encourages  interposition.^  The  manifestation  of 
bad  faith  on  the  part  of  the  highest  responsible  officials  of  one  de- 
partment of  a  government  serves  to  diminish  respect  for  those 
in  control  of  any  other. 

Where  a  denial  of  justice  is  apparent  in  the  neglect,  whether 
wanton  or  passive,  on  the  part  of  the  authorities,  to  use  the  means 
at  their  disposal  to  prevent  the  commission  of  wrongful  acts,  or  to 
prosecute  the  actors,  the  victim  rarely  finds  a  means  of  obtaining 
redress  through  domestic  channels.  This  is  due  to  the  lack,  even 
in  enlightened  States,  of  essentially  judicial  tribunals  clothed  with 
jurisdiction  to  denounce  the  acts  complained  of,  and  to  award 
compensatory  damages  against  the  State.^  Hence  interposition 
is  the  natural  consequence  of  such  forms  of  national  delinquency. 
For  the  same  reason  similar  action  is  to  be  anticipated  in  cases 
where  local  authorities  are  charged  with  the  commission  of  out- 
rages.^ The  same  difficulty  will  also  later  be  seen  to  offer  an 
insurmountable  barrier  to  the  attempt  of  the  foreign  holders  of 
unpaid  bonds  of  a  State  to  obtain  justice  by  local  judicial  process 
from  the  obligor.^ 

262 ;    Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  McKenzie,  Minister  to  Peru, 
July  9,  1895,  MS.  Inst.  Peru,  XVII,  650,  Moore,  Dig.,  VI,  691. 

Also  Prize  Courts  and  Procedure,  Discussion  between  the  United  States 
and  Great  Britain  during  The  World  War,  infra,  §§  894-895. 

1  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Scott,  Minister  to  Venezuela,  No. 
118,  June  23,  1887,  "MS.  Inst.  Venezuela,  III,  574,  Moore,  Dig.,  VI,  725; 
Mr.  Bavard,  Secy,  of  State,  to  Mr.  Thompson,  Mar.  9,  1886,  MS.  Inst.  Hayti, 
II,  ,544^  Moore,  Dig.,  VI,  704  ;  Mr.  Bayard,  Secv.  of  State,  to  Mr.  Buck,  Min- 
ister to  Peru,  No.  179,  Jan.  19,  1888,  MS.  Inst.  Peru,  XVII,  313,  Moore,  Dig., 
VI,  254. 

2  Glenn's  Case,  under  Convention  between  the  United  States  and  Mexico 
of  July  4,  1868,  Moore,  Arbitrations,  III,  3138;  Case  of  Zambrano,  For.  Rel. 
1904,  473-482,  Moore,  Dig.,  VI,  747;  Case  of  Ruden  &  Compa.ny,  before 
Peruvian  Claims  Commission,  under  Convention  between  the  United  States 
and  Peru  of  Dec.  4,  1868,  Moore,  Arbitrations,  II,  1653.  Also,  Cases  of  Mob 
Violence,  infra,  §§  290-292. 

3  Case  of  John  E.  Wheelock,  Moore,  Dig.,  VI,  744  and  769,  and  documents 
there  cited ;  Case  of  William  Wilson,  For.  Rel.  1894,  465-477,  Moore,  Dig., 
VI,  745;  Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President,  Dec.  19, 
1895  (concerning  Case  of  George  Webber),  S.  Ex.  Doc.  No.  33,  54  Cong.,  1 
Sess.,  '4,  Moore,  Dig.,  VI,  746. 

^  Public  Bonds,  infra,  §§  307-308. 

498 


WHEN  LOCAL  REMEDIES  HAVE  BEEN  SUPERSEDED     [§  284 

It  will  be  seen  that  oftentimes  when  an  individual  has  been 
wrongfully  arrested  and  held  in  custody  contrary  to  the  local 
law,  interposition  follows,  not  merely  for  the  purpose  of  securing 
redress  for  injuries  already  sustained,  but  also  to  prevent  the  per- 
petration of  obvious  and  irreparable  wrong  incidental  to  pro- 
longed detention,  and  which  the  prisoner,  unaided  by  his  own 
government,  would  be  helpless  to  prevent.^ 

(b) 
§  284.   When  Local  Remedies  Have  Been  Superseded. 

The  rule  that  an  alien  must,  before  seeking  the  aid  of  his  govern- 
ment, endeavor  to  obtain  redress  in  the  courts,  does  not  apply 
where  the  offending  government  has,  by  the  acts  of  its  proper 
organ,  relieved  the  party  complaining  from  appealing  to  the 
courts.^  A  typical  case  was  that  of  an  American  Consul,  Mr. 
Myers,  at  San  Salvador.  In  1890,  in  the  course  of  a  revolution, 
governmental  troops  violated  the  American  Consulate,  destroy- 
ing property  belonging  both  to  the  United  States  and  to  the  Con- 
sul, and  injuring  the  person  of  the  latter.  After  having  agreed 
to  pay  for  the  destruction  of  the  property  of  the  United  States 
and  of  the  Consul,  the  Salvadorean  Government  declared  in 
substance  that  the  claim  could  not  be  regarded  as  fixed  in  amount 
and  justifying  payment  on  demand  until  judicial  proceedings 
appropriate  to  that  end  had  been  had  in  the  local  courts.  In 
response,  Mr.  Blaine,  Secretary  of  State,  maintained  that  the 
question  whether  an  indemnity  was  due  had  been  adjusted  by  the 
agreement,  that  the  execution  of  the  agreement  was  not,  there- 
fore, a  matter  for  the  consideration  of  the  local  courts,  and  that 
the  effect  thereof  was  to  render  any  issue  as  to  the  amount  of 
damages  a  matter  for  diplomatic  adjustment.^ 

^  Case  of  Pflaum,  Moore,  Dig.,  VI,  771,  and  documents  there  cited;  Van 
Bokkelen's  Case,  under  protocol  between  the  United  States  and  Haiti,  of 
May  24,  1888,  Moore,  Arbitrations,  II,  1807-1853,  Moore,  Dig.,  VI,  699  and 
772. 

^  The  language  in  the  text  is  that  in  Moore,  Dig.,  VI.  682,  citing  opinion 
of  Mr.  Akerman,  Attorney-General,  Dec.  28,  1871,  in  the  matter  of  the  New 
Granadian  Passenger-Tax,  13  Ops.  Attys.-Gen.,  547. 

^  Although  the  matter  of  reparation  for  the  personal  injuries  sustained 
by  Mr.  Myers  was  not  covered  by  the  agreement,  it  was  "upon  general  prin- 
ciples'' regarded  by  Mr.  Blaine  "as  one  likewise  to  be  determined  solely 
by  the  agreement  of  the  two  governments."  Mr.  Blaine,  Secy,  of  State,  to 
Mr.  Shannon,  Minister  to  Central  America,  April  6,  1892,  For.  Rel.  1892. 
34,  36,  Moore,  Dig.,  VI,  682-684.  See,  also,  concerning  the  same  case.  For. 
Rel.  1892,  37-43,  49-51,  and  id.,  1893.  174-180,  181,  182,  184. 

Cf.,  also,  award  of  Hon.  Wm.  R.  Day,  Arbitrator,  in  the  matter  of  the 
Claims  of  John  D.  Metzger  &  Co.  v.  The  Republic  of  Haiti,  under  protocol 
of  Oct.  18,  1899,  For.  Rel.  1901,  262,  Moore,  Dig.,  VI,  689. 

499 


§  284]  RIGHTS  AXD  DUTIES  OF  JURISDICTION 

After  a  claimant  has  appealed  to  his  own  State  for  protection, 
and  it  has  interposed  in  his  behalf,  there  is  removed  from  him, 
in  a  domestic  sense,  so  far  as  his  own  government  is  concerned, 
any  duty  to  exliaust  local  remedies.  Nevertheless  the  fact  of 
interposition  is  not  decisive  of  the  propriety  of  such  action,  or 
of  the  correctness  of  conduct  on  the  part  of  the  aggrieved  State, 
in  not  requiring  its  own  citizen  to  have  recourse  to  the  courts 
of  the  respondent.^ 

Where  the  claim  is  contractual,  and  an  agreement  for  its  adjust- 
ment has  been  made,  either  with  the  individual  claimant,  or  with 
his  government,  the  matter  is  thereafter  regarded  as  one  of  an 
international  character,  justifying  governmental  action  if  the 
agreement  is  not  performed.^ 

(c) 

§  285.   When  Unjust  Discriminations  Are  Applied. 

If  the  territorial  sovereign  subjects  the  resident  alien  to  a  dis- 
crimination believed  to  be  unjust,  interposition  is  to  be  antic- 
ipated.^ That  a  denial  of  justice  takes  this  form  of  national 
delinquency  does  not  necessarily  serve,  on  principle,  to  excuse  the 
failure  to  exhaust  local  remedies.     Such  a  discrimination  usually, 

^  In  connection  with  the  Bluefields  incident  of  1899,  Mr.  Hill,  Acting  Secy. 
of  State,  declared  in  a  communication  to  Mr.  Merry,  Minister  to  Nic- 
aragua, Sept.  29,  1899:  "The  Government  of  the  United  States  does  not 
admit  the  competency  of  any  Nicaraguan  court  or  tribunal  to  determine  the 
rights  of  American  citizens  in  Nicaragua  when  they  have  appealed  to  their 
Government  for  protection,  and  when  it  has  taken  up  and  made  their  cause 
its  own."  For.  Rel.  1900,  809,  Moore,  Dig.,  VI,  685.  It  should  be  ob- 
served that  this  language  had  reference  to  a  situation  where  the  Governments 
of  Nicaragua  and  the  United  States  had  agreed  the  previous  year,  that  the 
issue,  which  related  to  the  second  payment  by  American  merchants  of  cer- 
tain duties,  should  be  adjusted  if  possible  by  the  two  Governments. 

2  Lord  John  Russell,  British  For.  Secy.,  to  Sir  C.  L.  Wyke,  British  Min- 
ister, March  30,  1861,  Brit,  and  For.  State  Pap.,  LII,  237,  238,  Moore,  Dig.,  VI, 
719 ;  Mr.  Trail,  Charge  at  Rio  de  Janeiro,  to  Mr.  Bayard,  Secy,  of  State, 
Jan.  21,  1887,  For.  Rel.  1887,  54,  55,  Moore,  Dig.,  VI,  720;  Edwin  M.  Bor- 
chard,  "Contractual  Claims  in  International  Law",  Columbia  Law,  R.,  XIII, 
457,  470,  citing  the  foregoing  authorities. 

See,  also,  Mr  Frelinghuysen,  Secv.  of  State,  to  Mr.  Phelps,  Minister  to 
Great  Britain,  March  30,  1883,  MS.  Inst.  Great  Britain,  XXVI,  609,  Moore, 
Dig.,  VI,  711,  with  relation  to  the  position  of  France  respecting  its  conven- 
tion of  July  29,  1864,  with  Venezuela,  for  the  payment  of  600,000  francs  in 
full  settlement  of  all  claims  against  the  latter. 

3  Mr.  Fish,  Secy,  of  State,  to  Mr.  White,  Jan.  7,  1874,  MS.  Inst.  Argentine 
Republic,  XVI,  57,  Moore,  Dig.,  VI,  698;  Opinion  of  Dr.  Wharton,  Sohcitor 
of  the  Dept.  of  State,  in  case  of  W.  A.  Davis  v.  Great  Britain,  1885,  cited 
in  Mr.  Day,  Acting  Secy,  of  State,  to  Messrs.  Lauterbach,  Dittenhoefer  & 
Limburger,  April  6,  1898,  227  MS.  Dom.  Let.  228,  Moore,  Dig.,  VI,  699; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Copeland,  Feb.  23,  1886,  159  MS.  Dom. 
Let.  138,  Moore,  Dig.,  VI,  699. 

500 


ARREST  AND  IMPRISONMENT  [§  286 

however,  serves  either  to  thwart  the  effort  to  invoke  judicial  aid, 
or  to  shatter  confidence  in  the  local  judicial  system.  Hence,  the 
situation  commonly  resembles  one  where  justice  is  deemed  to  be 
wanting. 

"Whenever  the  discrimination  is  considered  unjust  because 
deemed  to  be  in  violation  of  the  terms  of  a  treaty,  special  grounds 
for  diplomatic  protest  arise.^  As  the  breach  of  the  agreement 
is  a  wrong  peculiarly  directed  against  another  contracting  party, 
and  is  likely  to  be  applied  generally  to  its  nationals,  the  claim 
may  be  fairly  regarded  as  a  public  one.  In  so  far  as  it  is  based 
upon  the  interpretation  of  a  treaty,  it  raises  an  issue  not  believed 
to  be  capable  of  final  adjustment  by  any  domestic  tribunal ;  for 
the  foreign  contracting  party  may  always  rightly  contend  that 
it  is  not  bound  by  the  opinions  of  judges  to  whom  it  has  not  con- 
sented to  refer  its  cause.^ 


Claims  Arising  from  Acts  Primarily  Attributable  to  the 
Authorities  of  a  State 

(1) 

§  286.   Arrest  and  Imprisonment. 

It  has  been  seen  that  in  the  enactment  of  criminal  laws,  and  in 
their  application  without  discrimination  to  aliens  and  citizens 
alike,  the  ultimate  test  of  the  propriety  of  the  conduct  of  the 
territorial  sovereign  is  the  international  standard  which  civilized 
States  have  fixed.^  It  has  also  been  observed  that  that  standard 
is  such  as  to  enable  each  State  to  enjoy  largest  freedom  in  the 
administration  of  criminal  justice."*  For  that  reason  the  rigor 
with  which  the  territorial  sovereign  applies  to  aliens  its  criminal 
code  will  rarely  be  looked  upon  as  decisive  of  internationally 
illegal  conduct,  when  it  appears  that  the  proceedings  are  in  every 

1  Report  of  Thrasher's  Case  bv  Mr.  Webster.  Secy,  of  State,  to  the  Presi- 
dent. Dec.  23,  1851,  6  Webster's  Works,  530,  Moore,  Dig.,  VI,  698. 

2  See  Operation  and  Enforcement  of  Treaties,  Province  of  the  Courts  in 
the  United  States,  infra,  §  526. 

'  Duties  of  iurisdiction,  supra,  §§266-267;  also  Mr.  Frelinghuvsen,  Secv. 
of  State,  to  Mr.  Lowell,  Minister  to  England,  April  25,  1882,  For.  Rel.  1882, 
230-234,  Moore,  Dig.,  VI,  27.5-277. 

*  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Morse,  May  31,  1893,  192  MS.  Dom. 
Let.  184,  Moore,  Dig.,  VI,  282.  See,  also,  Mr.  Root,  Secy,  of  State,  to  Min- 
ister Furniss,  May  4,  1906,  concerning  claim  of  M.  J.  Kouri,  For.  Rel.  1906, 
II,  871. 

501 


tv 


§  286]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

way  regular.^  Even  wlien  an  alien  prosecuted  in  good  faith  and 
with  careful  regard  for  his  rights  of  defense  is,  nevertheless,  con- 
victed of  a  crime  of  which  he  is  innocent,  the  result  does  not 
necessarily  indicate  a  denial  of  justice.^  Nor  does  the  sustain- 
ing of  the  conviction  by  an  appellate  court  of  last  resort  indicate 
conclusively  that  the  territorial  sovereign  has  abused  its  right  of 
jurisdiction  or  violated  any  principle  of  international  law."^  The 
reluctance  in  such  a  case  on  the  part  of  the  State  of  the  accused 
to  interpose  in  his  behalf  for  the  purpose  of  either  securing  his 
release  or  of  obtaining  an  indemnity,  is  due  to  the  absence  of 
internationally  illegal  conduct  in  the  matter  of  prosecution 
The  case  differs  from  that  where,  notwithstanding  delinquency 
on  the  part  of  the  territorial  sovereign,  a  foreign  State  deems  it 
necessary  to  refrain  from  interposition  until  the  accused  shall 
have  endeavored  to  obtain  redress  through  domestic  channels. 

At  any  stage  of  his  prosecution  the  accused  may,  however,  be  sub- 
jected to  what  may  be  regarded  as  internationally  illegal  treatment. 
This  is  obvious  when,  for  example,  the  provisions  of  the  local  law  are 
disregarded,*  or  a  treaty  with  the  State  of  the  accused  is  violated,^ 
or  any  requirement  of  the  international  standard,  such  as  that 
forbidding  the  cruel  or  arbitrary  treatment  of  prisoners,^  or  the 

^  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Jackson,  Charge,  at  Vienna,  April  6, 
1855,  MS.  Inst.  Austria,  I,  105,  Moore,  Dig.,  VI,  275. 

"  Detention  of  witnesses  to  prevent  their  disappearance  and  insure  their 
giving  testimony  when  called  for  is  common  in  the  jurisprudence  of  all  coun- 
tries, and  special  provisions  exist  in  those  where  the  principles  of  the  civil 
law  are  in  force  relative  to  the  detention  au  secret  of  an  accused  person ;  but 
such  detention  should  be  reasonable  and  not  unduly  prolonged  or  harshly 
enforced,  and  is  merely  a  temporary  measure  in  the  administration  of  jus- 
tice." Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Langston,  Minister  to 
Haiti,  No.  324.  Jan.  20,  1885,  For.  Rel.  1885,  490,  Moore,  Dig.,  VI,  773. 

2  Mr.  Frelinghuysen,  Secy,  of  State,  to  Baron  Schaeffer,  Austrian  Minister, 
June  28.  1882,  MS.  Notes  to  Au.stria,  VIII,  338,  Moore,  Dig.,  VI,  765.  See, 
also,  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Starkweather,  Aug.  24,  1855,  MS. 
Inst.  Chile,  XV,  124.  Moore.  Dig.,  VI,  264;  Same  to  Chevalier  Bertinatti, 
Sardinian  Minister,  Dec.  1,  1856,  MS.  Notes  to  Italy,  VI,  178,  Moore,  Dig., 
VI,  659 ;  Thornton,  Umpire,  in  Benjamin  Burn  Case,  Mexican-American 
Commission,  Convention  of  July  4,  1868,  Moore,  Arbitrations,  III,  3140. 

3  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Hevner,  June  10,  1893,  192  MS. 
Dom.  Let.  296,  Moore,  Dig.,  VI,  282. 

*  Mr.  Foster,  Secy,  of  State,  to  Mr.  Terres,  Charge  at  Port  au  Prince, 
telegram,  Dec.  2,  1892,  For.  Rel.  1893,  358,  concerning  Case  of  Frederick 
Mevs,  also  other  documents,  id.,  355-382,  Moore,  Dig.,  VI,  767-768.  See, 
also,  case  of  the  unlawful  treatment  of  W.  H.  Argall  bv  Guatemalan  au- 
thorities, For.  Rel.  1894,  312,  id.,  1895,  II,  liyilb,  Moore,  Dig.,  VI,  768; 
Case  of  Charles  LilljTvhite,  subjected  to  false  imprisonment  and  deportation 
from  New  Zealand  to  England,  For.  Rel.  1901,  231-236,  Moore,  Dig.,  VI, 
768. 

^  Case  of  C.  A.  Van  Bokkelen  imprisoned  in  Haiti,  Moore,  Arbitrations, 
1807-1853. 

6  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Soteldo,  Venezuelan  Minister, 

502 


ARREST  AND  IMPRISONMENT  [§  286 

refusal  to  hear  testimony  in  their  behalf,  is  unheeded.^  If  the 
Department  of  State  believes  that  for  any  of  the  foregoing  reasons, 
an  American  citizen  is  being  wrongfully  held  in  restraint  of  his 
liberty,  or  subjected  to  ill-treatment,  his  release  will  be  demanded. 
Thus  in  the  case  of  A.  K,  Cutting,  an  American  citizen,  held  in 
custody  in  Mexico  in  1886,  the  United  States  was  able  to  show 
that  the  criminal  prosecution  was  an  abuse  of  the  right  of  juris- 
diction and  so  contrary  to  international  law,  that  the  judicial 
proceedings  preliminary  to  imprisonment  were  palpably  unjust, 
and  that  the  prisoner  "was  subjected  to  pains  and  depredations 
which  no  civilized  Government  should  permit  to  be  inflicted  on 
those  detained  in  its  prisons."  Mr.  Bayard,  Secretary  of  State, 
therefore,  demanded  (without  success,  however),  the  "immediate 
release  "  of  the  prisoner.^ 

More  recently,  in  the  case  of  Mr.  W.  O.  Jenkins,  the  American 
Consular  Agent  at  Puebla,  who,  after  having  been  kidnaped 
by  bandits  and  held  for  ransom  in  October,  1919,  was,  after  his 

April  4,  1884,  concerning  Case  of  John  E.  Wheelock  subjected  to  cruelty  by 
an  officer  of  justice  of  Venezuela  in  1879,  For.  Rel.  1884,  599,  Moore,  Dig., 
VI,  321;  also  concerning  same  case,  For.  Rel.  1885,  932-934;  Mr.  Evarts, 
Secv.  of  State,  to  Mr.  Baker,  Minister  to  Venezuela,  Oct.  15,  1880,  For.  Rel. 
1880,  1041,  1043,  Moore,  Dig.,  VI,  769;  see,  also,  same  to  Mr.  Langston, 
Minister  to  Haiti,  No.  23,  April  12,  1878,  MS.  Inst.  Haiti,  II,  136,  Moore, 
Dig.,  VI,  656. 

Cf.  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Dougherty,  Charg^,  No.  423,  Dec.  29, 
1890,  MS.  Inst.  Mexico,  XXII,  687,  Moore,  Dig.,  VI,  773,  concerning  the 
enforced  labor  of  two  American  citizens  accused  but  not  convicted  of  crime 
in  Mexico ;  also  Mr.  Root,  Secy,  of  State,  to  Mr.  Furniss,  Minister  to  Haiti, 
Feb.  1,  1907,  concerning  ill-treatment  of  David  A.  Backer,  For.  Rel.  1907, 
II,  742. 

1  Mr.  Conrad,  Acting  Secv.  of  State,  to  Mr.  Peyton,  Charge  to  Chile, 
Oct.  12,  1852,  MS.  Inst.  Chile,  XV,  93,  Moore,  Dig.,  VI,  274. 

2  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  tele- 
gram, July  19,  1886,  "For.  Rel.  1886,  700,  Moore,  Dig.,  VI,  281. 

Not  infrequently  where  it  has  appeared  that  the  accused  was  not  unjustly 
or  even  unreasonably  being  prosecuted,  the  United  States  has  encouraged 
its  representatives  to  exert  their  influence,  for  light  puni'^ihment  if  not  the 
release  of  the  prisoner,  especially  where  the  commission  of  the  offense  charged 
was  marked  by  the  absence  of  circumstances  indicating  moral  turpitude  on 
the  part  of  the  actor.  Mr.  Uhl,  Acting  Secy,  of  State,  to  Mr.  Tripp,  Min- 
i  ter  to  Austria-Hungary,  Nov.  17,  1893,  For.  Rel.  1894,  26,  Moore,  Dig.. 
VI,  766;  Mr.  Olney,  Secy,  of  State,  to  Mr.  Gould,  June  29,  1896,  211  MS. 
Dom.  Let.  149,  Moore,  Dig.,  VI,  766. 

When  an  American  citizen  has  been  criminally  prosecuted  under  circum- 
stances creating  suspicion  as  to  the  propriety  or  regularity  of  the  conviction 
or  punishment  inflicted,  the  United  States  has  not  hesitated  to  request  of  the 
prosecuting  State  full  information  as  to  the  conduct  of  proceedings.  Mr. 
Marcv,  Secy,  of  State,  to  Mr.  Jackson,  Charge  at  Vienna,  April  6,  1S55,  MS. 
Inst.  Au.stria,  I,  105,  Moore,  Dig.,  VI.  283 ;  Mr.  Blaine,  Secv.  of  State,  to  Mr. 
Ryan,  Minister  to  Mexico,  Feb.  16,  1891,  MS.  Inst.  Mexico,  XXIII,  38,  Moore, 
Dig.,  VI,  284;  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Sepulveda,  American 
Charge  d'Affaires  ad  interim  at  Mexico,  May  5,  1897,  For.  Rel.  1897,  396, 
Moore,  Dig.,  VI,  285. 

503 


§  286]  RIGHTS  AND  DUTIES  OF  .JURISDICTION 

release,  arrested  and  prosecuted  by  ^Mexican  authorities  on  a 
charge  of  perjury  in  a  judicial  declaration,  the  Department  of 
State  demanded  the  release  of  the  accused  on  the  ground  that 
Mexico  was  perverting  its  judicial  system  in  prosecuting  the 
victim  instead  of  the  perpetrators  of  the  crime  of  abduction.^ 

Again,  if  the  Department  of  State  believes  that  from  the  nature 
of  the  offense  charged  or  from  the  proceedings  already  instituted, 

1  Mr.  Jenkins  was  taken  by  bandits  in  the  city  of  Puebla  on  Oct.  19,  1919, 
and  held  for  ransom  until  Oct.  26,  following,  when  he  was  released  after  hav- 
ing undergone  physical  suffering,  his  captors  obtaining  cash  payments  for  a 
part  of  the  sum  demanded  and  .security  for  the  balance.  In  November,  he 
was  arrested  by  Mexican  authorities  on  a  charge  of  having  made  a  false  oath 
in  a  judicial  declaration.  On  Nov.  20,  1919,  the  Department  of  State,  through 
the  Embassy  at  Mexico  City,  made  peremptory  demand  for  Mr.  Jenkins's 
release,  declaring  that  according  to  evidence  in  hand,  the  arrest  was  deemed 
"entirely  unjustified  and  an  arbitrarj-  exercise  of  public  authority."  In  a 
note  of  'Nov.  26,  1909,  Mexico  decKned  to  yield  to  this  demand,  declaring 
that  the  imprisonment  was  not  unjust  or  arbitrary,  and  that  there  was 
evidence  justifying  the  charge  made.  It  challenged  the  propriety  of  diplo- 
matic interposition  in  the  case,  and  adverted  to  constitutional  difficulties 
preventing  the  Executive  from  compelling  a  judge  of  a  Mexican  State  court 
to  release  an  offender.  In  this  connection  attention  was  called  to  the  prac- 
tice in  the  United  States.  In  a  reply  communicated  through  the  American 
Embassy  at  Mexico  City,  under  date  of  Nov.  30,  1919,  Secretary  Lansing  de- 
clared in  .substance  that  the  Mexican  arguments  were  mere  excuses  for  the 
harassing  of  an  American  Consular  Officer  entitled  to  fair  treatment.  He 
contended  that  there  had  been  a  denial  of  justice,  and  noted  the  impropriety 
of  the  assertion  of  jurisdiction  by  a  Mexican  State  court,  in  view  of  the  con- 
stitutional requirement  conferring  jurisdiction  in  such  ca.^es  on  the  Mexican 
Federal  tribunals.  He  said  :  "Stripped  of  extraneous  matter,  with  which  the 
Mexican  note  of  Nov.  26,  endeavors  to  clothe  it.  the  naked  case  of  Jenkins 
stands  forth :  Jenkins,  a  United  States  Consular  Agent,  accredited  to  the 
Government  of  Me.xico,  is  imprisoned  for  'rendering  false  judicial  testimony,' 
in  connection  with  the  abduction  of  which  he  was  the  victim."  He  contended 
in  substance  that  the  prosecution  was  allied  with  the  abduction,  in  the  sense 
that  the  abduction  and  what  it  entailed  was  the  real  cause  of  the  prosecution 
which  was  undertaken  for  the  purpose  of  harassing  Mr.  Jenkins,  and  that, 
therefore,  no  technical  ground  for  demanding  that  the  United  States  refrain 
from  interposition  was  entitled  to  respect.  On  Dec.  4,  1919,  Mr.  Jenkins  was 
released  on  bail  furnished  by  another  person.  Somewhat  later  in  December, 
the  Mexican  Government,  in  response  to  Mr.  Lansing's  note,  declared  that 
the  release  under  bail  should  remove  any  motive  for  misunderstanding  be- 
tween the  Governments  concerned,  and  reiterated  its  contention  that  the 
criminal  charge  against  Mr.  Jenkins  was  not  unfounded.  The  ^Mexican 
Government,  it  was  said,  could  not  admit  that  American  citizens  could  be 
"tried  and  absolved  on  simple  reports  from  the  State  Department,  nor  on 
recommendations  or  suggestions  from  the  United  States,  instead  of  trying  them 
by  Mexican  courts  and  according  to  Mexican  laws."  There  appeared  to  be 
no  disposition  to  abandon  the  prosecution.  The  Department  of  State  was 
not.  however,  satisfied  with  the  situation  resulting  from  the  release  of  the 
accused  on  bail. 

On  June  .30.  1920,  the  Department  of  State  reported  the  receipt  of  informa- 
tion indicating  the  confession  by  a  number  of  peons  before  the  criminal  court 
at  Puebla  at  a  re-trial  of  Mr.  Jenkins,  that  their  previous  testimony  against 
him  had  been  false,  and  that  they  had  been  forced  to  give  such  testimony 
under  threats  of  death.  It  was  also  reported  that  one  Cordova,  later  a  gen- 
eral, had  admitted  to  the  court  that  he  alone  was  responsible  for  the  abduc- 
tion of  Mr.   Jenkins.      Dept.  of  State,   statement  for  the  Press,  June  30, 

504 


ARREST  AXD    IMPRISONMENT  [§  286 

the  prisoner  is  exposed  to  improper  treatment,  it  may  demand 
assurance  of  his  adequate  protection  at  trial.^  WTiere,  however, 
after  his  release  from  custody,  the  victim  seeks  pecuniary  redress 
for  irregular  imprisonment,  or  on  account  of  improper  treatment 
accorded  him  during  his  restraint,  the  United  States  is  not  dis- 
posed to  intervene  when  it  appears  that  he  can  obtain  redress  by 
any  local  process,  directed  either  against  the  territorial  sovereign 
or  the  officials  made  by  the  local  law  responsible  for  the  injuries 
sustained.-     The  exhaustion  of  the  local  remedy  is  thus  made  a 

1920,  No.  1.  In  December,  1920.  it  was  reported  that  all  charges  against 
Mr.  Jenkins  had  been  dismissed  by  a  Mexican  court  which  had  decreed  his 
freedom  and  directed  the  return  of  bail.  See  New  York  World,  Dec.  6,  1920. 
The  case  illustrates  well  how  a  territorial  sovereign  may  pervert  or  per- 
mit the  perversion  of  its  judicial  system  for  the  purpose  of  persecuting  an 
alien  who,  by  reason  of  his  official  relation  to  his  own  State,  as  well  as  the 
treatment  to  which  he  has  been  subjected  by  criminal  offenders,  is  entitled 
to  special  consideration.  Under  such  circumstances  the  nature  of  the  denial 
of  justice  is  such  as  to  sweep  aside  as  unworthy  of  respect  the  claim  that  the 
State  of  the  victim  should  refrain  from  interposition,  and  should  await  pas- 
sively the  progress  and  termination  of  the  criminal  prosecution.  The  practice 
which  has  developed  the  rule  favoring  a  withholding  of  interposition  in  crim- 
inal cases  until,  at  least,  the  accused  has  exhausted  every  local  judicial  remedy, 
is  based  on  the  principle  that  justice  is  within  the  reach  of  the  aggrieved 
alien.  Because  it  is  commonly  within  the  reach  of  such  an  individual  prose- 
cuted in  the  territory  of  an  enlightened  State,  the  principle  has  found  abun- 
dant room  for  application.  Whenever,  however,  a  territorial  sovereign,  by 
reason  of  the  abuse  of  those  very  agencies  which  should  be  devoted  to  a  differ- 
ent purpose,  applies  them  as  an  instrument  of  oppression,  its  action  is  likely 
to  be  seen  in  its  true  light  and  dealt  with  accordingly.  No  technical  argu- 
ment opposing  interposition  will  in  such  event  be  regarded  as  other  than  a 
pretext  to  disguise  the  real  purposes  of  prosecution,  and  as  a  means  of  escaping 
the  consequences  of  it. 

1  Mr.  Bavard.  Secv.  of  State,  to  Mr.  Jackson.  Minister  to  Mexico,  No. 
226,  July  26,  1886,  MS.  Inst.  Mexico,  XXI,  53.5,  Moore.  Dig.,  VI,  281. 

2  Mr.  Bavard,  Secv.  of  State,  to  Mr.  West,  Briti.sh  Minister,  June  1,  1885, 
For.  Rel.  1885,  450,  453-454,  Moore,  Dig.,  VI.  277-279;  Same  to  Mr.  Geb- 
bard,  Sept.  9,  1885,  157  MS.  Dom.  Let.  88,  Moore,  Dig.,  VI,  279;  Mr.  Bu- 
chanan, Secv.  of  State,  to  Mr.  Pakenham,  British  Minister,  Dec.  26,  1846, 
MS.  Notes  to  Great  Britain,  VII,  149,  Moore,  Dig..  VI,  659;  Mr.  Fish,  Secv. 
of  State,  to  Mr.  Warren,  Feb.  26,  1875,  107  MS.  Dom.  Let.  7,  Moore,  Dig. 
VI,  661 ;  Mr.  Dav,  Acting  Secv.  of  State,  to  Messrs.  Lauterbach,  Dittenhoefer 
&  Limburger,  April  6,  1898,  227  MS.  Dom.  Let.  228,  Moore,  Dig.,  VI,  670; 
Mr.  Hav,  Secv.  of  State,  to  Mr.  Lombard,  Oct.  3,  1898,  232  MS.  Dom.  Let. 
56,  Moore,  Dig.,  VI,  671. 

See  Award  of  Senor  Quesada,  Nov.  19,  1897,  in  Oberlander  and  Messenger 
Case,  protocol  between  the  United  States  and  Mexico,  March  2,  1897,  For. 
Rel.  1897,  382,  387,  388,  Moore,  Dig.,  VI.  670. 

In  the  J.  R.  Pierce  Case,  ]\Iexican-American  Commission,  July  4,  1868, 
Thornton,  Umpire,  was  of  opinion  that  the  reprimanding  and  dismissal  of 
an  official  who  had  arbitrarily  arrested  an  American  citizen,  freed  the  respond- 
ent State  from  the  obligation  to  pay  an  indemnity.  Moore,  Arbitrations, 
IV,  32.52. 

In  the  Case  of  Tunstall,  a  British  subject,  killed  in  New  Mexico  in  1878 
while  pursued  by  a  sheriff's  posse,  Mr.  Bayard,  Secy,  of  State,  in  denying  the 
duty  of  the  United  States  to  pay  an  indemnity,  asserted,  first,  that  the  kill- 
ing, in  personal  malice,  by  an  officer,  of  a  defendant  in  a  civil  process  in  the 
officer's  hand,  and  after  the  execution  of  the  writ,  was  to  be  considered  as  col- 

505 


§  286]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

condition  precedent  to  the  preferring  of  any  claim.  When,  how- 
ever, it  has  not  been  shown  that  the  aggrieved  citizen  can  obtain 
redress  through  domestic  channels,  the  Department  of  State  is  un- 
willing to  yield  to  any  suggestion  emanating  from  the  territorial 
sovereign  that  the  victim  should  be  left  to  his  own  resources. 
In  such  case  interposition  is  to  be  anticipated.^ 


(2) 

§  287.   Acts  of  Judicial  Officers. 

When  the  action  of  judicial  authorities  expressed  in  decisions 
adverse  to  the  contentions  of  alien  litigants  has  been  the  subject 
of  complaint,  confusion  of  thought  has  arisen  from  the  failure 
of  arbitral  tribunals  as  well  as  of  foreign  offices  to  observe  with 
care  what  constitutes  a  denial  of  justice  on  the  part  of  a  court 
of  first  instance.  That  matter  may  have  oftentimes  appeared 
to  be  unimportant  in  view  of  the  common  requirement  that  when 
an  alien  claimant  has  had  recourse  to  domestic  courts,  or  has  been 
compelled  to  respond  to  a  suit  therein,  his  appeal  from  an  adverse 
decision  to  the  court  of  last  resort  should  precede  interposition 

lateral  to  his  official  action  and  one  for  which  the  Government  was  not  re- 
sponsible ;  secondly,  that  it  had  been  held  by  the  Federal  courts  that  the 
Federal  Government  was  not  liable  for  the  torts  of  officers  of  a  territory 
organized  under  Congressional  legislation;  thirdly,  that  in  countries  subject 
to  the  English  common  law  where  there  was  an  opportunity  given  for  a  prompt 
trial  by  a  jury  of  the  vicinage,  damages  inflicted  upon  foreigners  should  be  re- 
dressed through  the  instrumentality  of  the  courts,  and  were  not  the  subject 
of  diplomatic  intervention;  and  fourthly,  that  great  practical  inconvenience 
would  result  from  the  payment  of  the  claim  by  the  confusion  of  the  boun- 
daries between  judicial  and  executive  actions,  and  by  opening  the  door  to  the 
bringing  of  a  vast  mass  of  claims  of  each  Government  against  the  other.  It 
was  stated  also  that  Tunstall  having  an  apparent  domicile  in  New  Mexico 
"was  not  even,  so  far  as  concerns  the  administraticn  of  the  judicial  function 
there,  a  foreigner",  and  that  his  representatives  had,  "under  the  law  of  na- 
tions, no  title  to  the  intervention  of  a  foreign  sovereign."  Communication 
to  Mr.  West,  British  Minister,  June  1,  1885,  For.  Rel.  1885,  450-459.  The 
extract  is  taken  mainly  from  the  statement  of  Mr.  Bayard's  position  con- 
tained in  Moore,  Dig.,  VI,  664-666.  It  is  to  be  doubted  whether  Mr.  Bay- 
ard's conclusions  derived  from  the  domicile  of  the  decedent  were  sound. 

1  Mr.  Bayard,  Secv.  of  State,  to  Mr.  Cox,  Minister  to  Turkey,  Aug.  17, 
1885,  concerning  the  Case  of  Dr.  Maurice  Pflaum,  For.  Rel.  1885,  859,  Moore, 
Dig.,  VI,  771-772;  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Soteldo,  Vene- 
zuelan Minister,  April  4,  1881,  concerning  the  Case  of  John  E.  Wheelock,  For. 
Rsl.  1884,  599,  Moore,  Dig.,  VI,  321;  Mr.  Evarts,  Secv.  of  State,  to  Mr. 
Baker,  Minister  to  Venezuela,  No.  91,  Oct.  15,  1880,  For.  Rel.  1880,  1041, 
Moore,  Dig.,  VI,  744-745;  also  Case  of  Dr.  John  Baldwin,  Mexican-Ameri- 
can Commission,  Convention  of  Anril  11,  1839,  Moore,  Arbitrations,  3235; 
opinion  of  Thornton,  Umpire,  in  Pradel  Case,  Mexican-American  Commis- 
sion, Convention  of  July  4,  1868.  id.,  3141. 

Compare  attitude  of  Mexico  in  Case  of  Howard  C.  Walker,  Moore,  Dig., 
VI,  770  and  documents  there  cited  from  For.  Rel.  1884,  1888,  1889  and  1890. 

506 


ACTS  OF  JUDICIAL  OFFICERS  [§  287 

on  his  behalf.^  From  this  practice  it  has  been  natural  to  infer 
that  no  denial  of  justice  appears  until  the  decision  of  the  inferior 
court  has  been  confirmed  by  the  highest  judicial  authority.^  Such 
a  conclusion  is  a  reasonable  inference  from  the  situation  arising 
in  a  broad  class  of  cases  where,  notwithstanding  the  error  of  the 
court  of  first  instance,  no  act  on  its  part  is  to  be  regarded  as  inter- 
nationally illegal.  Its  conduct  does  not  necessarily  present  an 
illegal  aspect,  when,  for  example,  acting  in  good  faith  and  with 
impartiality,  and  without  violating  local  rules  of  practice  upon 
which  the  alien  litigant  relies  for  protection,  the  court,  neverthe- 
less, errs  in  its  view  of  the  local  law,  or  in  the  application  thereof 
to  the  facts  of  the  particular  case,  and  pronounces  a  decision 
adverse  to  the  alien. 

Nor  can  the  territorial  sovereign  through  the  operation  of 
whose  judicial  system  such  a  result  has  occurred  be  justly  regarded 
by  the  State  of  the  alien  as  having  wronged  him.^  This  is  believed 
to  be  true  not  only  because  the  courts  may,  in  a  domestic  sense, 
be  independent  of  the  political  department,  or  because  of  the 
existence  of  an  appellate  tribunal  capable  of  rendering  nugatory 
the  errors  of  an  inferior  court,  but  chiefly  for  the  reason  that  the 
decision  of  the  court  of  first  instance  did  not  itself  constitute  a 
violation  of  international  law. 

Instances  are  plentiful,  however,  where  the  decision  of  the 
inferior  court  has  possessed  an  internationally  illegal  character. 
Decisions  are  believed  to  be  of  such  a  kind  when,  for  example, 
the  terms  of  a  treaty,  concerning  the  interpretation  of  which 
there  is  no  dispute,  are  flagrantly  disregarded,  or  when  the  safe- 
guards provided  by  the  local  law  for  the  security  of  the  accused 
(in  a  criminal  case)  are  unheeded.'*     In  such  cases  a  denial  of 

1  Mr.  Clav,  Secy,  of  State,  to  Mr.  Tacon,  Feb.  5,  1828,  MS.  Notes  to  For. 
Leg.  Ill,  423,  Moore,  Dig.,  VI,  652;  Mr.  Marcv,  Secv.  of  State,  to  Mr.  Clav, 
Minister  to  Peru,  No.  30,  May  24,  1855,  MS.  Inst.  Peru,  XV,  159,  Moore, 
Dig.,  VI,  659 ;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Rvan,  Minister  to  Me.xico, 
April  26,  1893,  MS.  Inst.  Mexico,  XXIII,  359,  Moore,  Dig.,  VI,  270.  See, 
also,  Seth  Driggs  Ca.se,  United  States- Venezuelan  Claims  Commission,  Con- 
vention of  Dec.  5,  1885,  Moore,  Arbitrations,  III,  3160. 

2  Mr.  Davis,  Assist.  Secy,  of  State,  to  Mr.  Moseby,  June  23,  1873,  99  MS. 
Dom.  Let.  260,  Moore,  Dig.,  VI,  661  ;  Same  to  Mr.  Chase,  consul  at  Tampico, 
Jan.  10,  1870,  57  MS.  Inst.  Consuls,  101,  Moore,  Dig.,  VI,  750;  Mr.  Ma- 
riscal,  Mexican  Minister  of  Foreign  Affairs,  to  Mr.  Morgan,  Minister  to 
Mexico,  April  2,  1886,  H.  Ex.  Doc.  328,  51  Cong.,  1  Sess.,  Moore,  Dig.,  VI, 
668.     See,  also,  Ralston,  Arbitral  Law,  49. 

3  Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Welsh,  March  14,  1835,  27  MS.  Dom. 
Let.  261,  Moore,  Dig.,  VI,  261 ;  Mr.  Frelinghuysen,  Secy,  of  State,  to  Baron 
Schaeffer,  Austrian  Minister,  June  28,  1882,  MS.  Notes  to  Austria,  VIII, 
338,  Moore,  Dig.,  VI,  765. 

*  Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Semple,  Charge  d' Affaires  to  New 

507 


§  287]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

justice  is  apparent  by  reason  both  of  the  character  of  the  act 
and  of  its  commission  by  an  authority  of  the  State.  It  is  true 
that  such  conduct  on  the  part  of  that  department  of  the  Govern- 
ment entrusted  with  the  special  duty  to  administer  justice  may 
destroy  all  reason  for  hope  on  the  part  of  the  foreign  State  that 
its  national  may  still  obtain  redress  by  exhausting  his  remedies 
through  appeal  to  a  higher  agency  of  the  same  department.  The 
internationally  illegal  acts  of  inferior  courts  have  served  more 
than  once  to  produce  such  an  effect  and  to  inspire  interposition.^ 
When,  notwithstanding  a  denial  of  justice  by  a  court  of  first  in- 
stance, the  State  of  the  alien  complainant  has  refrained  from 
espousing  his  cause  until  he  has  exhausted  his  judicial  remedies, 
the  withholding  of  interposition  has,  therefore,  betokened  signifi- 
cant respect  for  the  principle  that  the  propriety  of  interposition 
depends  upon  something  more  than  the  bare  fact  of  national 
delinquency,  and  that  it  lacks  justification  so  long  as  the  claimant 
may  obtain  redress  through  domestic  judicial  channels.^ 

Courts  of  arbitration  have  frequently  expressed  the  opinion 
that  the  territorial  sovereign  is  not  responsible  for  the  miscon- 
duct of  an  inferior  judicial  tribunal,  when  no  attempt  has  been 
made  by  the  aggrieved  litigant  to  obtain  justice  from  a  higher 
court .^     Such  a  statement  is  misleading  in  so  far  as  it  conveys 

Granada,  No.  7,  Feb.  12,  1839,  MS.  Inst.  Colombia,  XV.  58,  Moore,  Dig., 
VI,  249.  See,  also,  Parrott  Case,  Mexican  Claims  Commission,  Act  of  Cong., 
March  3,  1849,  Moore,  Arbitrations,  3009,  at  3011,  where  it  was  said:  "The 
abuse  of  judicial  functions  and  the  perversions  of  the  laws  have  been  such 
...  in  relation  to  proceedings  in  which  the  claimant  was  interested,  as  to 
have  produced  great  wrong  and  a  denial  of  justice"  ;  opinion  of  Thornton, 
Umpire  in  the  Bronner  Case,  Mexican-American  Claims  Commission,  Con- 
vention of  July  4,  1868,  Moore,  Arbitrations,  3134,  in  which  it  was  said  that 
"the  decision  appears  to  him  [the  Umpire],  so  unfair  as  to  amount  to  a 
denial  of  justice";  also  opinion  of  same  umpire  in  the  Jonan  case,  before 
same  Commission.  Also  Ruden  Case,  Peruvian  Claims  Commission,  Con- 
vention of  Dec.  4,  1868,  Moore,  Arbitrations,  II,  1653 ;  Taghaferro  Case,  Ital- 
ian-Venezuelan Commission,  1903,  Ralston's  Report,  764.  Compare  Bertinatti, 
Umpire,  in  Medina  Case,  United  States-Costa  Rican  Commission,  Conven- 
tion of  July  2,  1860,  Moore,  Arbitrations,  III,  2316,  2317. 

1  Mr.  Everett,  Secy,  of  State,  to  Mr.  Marsh,  Minister  to  Turkey,  con- 
cerning the  Case  of  Rev.  Jonas  King,  No.  24,  Feb.  5,  1853,  S.  Ex.  Doc.  9, 
33  Cong.,  2  Sess.,  5,  8,  9,  Moore,  Dig.,  VI,  262 ;  Report  of  Mr.  Bayard,  Secy, 
of  State,  to  the  President,  Feb.  26,  1887,  S.  Ex.  Doc.  109,  49  Cong.,  2  Sess., 
Moore,  Dig.,  VI,  666. 

2  As  has  been  seen,  there  is  no  dutv  on  the  part  of  a  claimant  to  exhaust 
his  judicial  remedies  when  it  would  be  useless  to  do  so  (Donouchho  Case, 
Mexican-American  Commission,  Convention  of  July  4,  1868,  Moore,  Arbi- 
trations, III,  3012,  3014),  or  when  he  is  prevented  from  so  doing  by  intrigue  on 
the  part  of  the  government  (Garrison  Case,  before  same  commission,  Lieber, 
Umpire,  id.,  3129).  See,  also,  Ballistini  Case,  French-Venezuelan  Commis- 
sion, 1902,  Ralston's  Report,  503-504;  Gray,  Admr.  v.  United  States,  21 
Ct.  CI.  340,  402,  Moore,  Dig.,  VII,  644. 

3  See,  for  example,  opinion  of  Thornton,  Umpire,  Mexican-American  Com- 

508 


ACTS  OF  JUDICIAL  OFFICERS  [§  287 

the  Idea  that  national  responsibihty  for  the  acts  of  an  agent  is 
dependent  upon  the  grade  of  the  actor  rather  than  upon  the 
quahty  of  the  act.  Moreover,  the  estabhshment  of  responsibihty 
is  not  decisive  of  the  procedure  to  be  followed  in  securing  redress 
for  wrongs  sustained.  Thus,  it  may  be  that  when  arbitrators 
have  referred  to  the  absence  of  responsibility  of  a  State  for  the 
misconduct  of  inferior  courts,  they  have  merely  sought  to  convey 
the  idea  that  whether  or  not  a  denial  of  justice  is  effected  by  the 
conduct  of  a  judge,  no  duty  is  imposed  upon  the  political  depart- 
ment of  the  territorial  sovereign  to  respond  directly  in  damages 
to  the  alien  litigant,  or  to  his  country  acting  in  his  behalf,  until 
he  has  exhausted  his  judicial  remedies  by  appealing  to  the  court 
of  last  resort. 

In  a  word,  when  an  inferior  court,  like  any  other  authority  of 
a  State,  denies  justice,  national  responsibility  is  established,  but 
the  reasonableness  of  interposition  seems  to  depend  upon  the  op- 
portunity for  redress  obtainable  by  appeal  to  the  court  of  last  re- 
sort. The  existence  of  an  appellate  tribunal  empowered  to  correct 
the  errors  of  an  inferior  court  is  prima  facie  evidence  that  redress 
is  within  the  reach  of  him  who  invokes  its  aid.-^ 

mission,  Convention  of  Jiilv  4, 1868,  in  case  of  Jennings,  Laughland  &  Co.,  Moore, 
Arbitrations,  III,  313.S-3137  ;  in  Green  Case,  id.,  3139  ;  in  Case  of  the  "Ada", 
id.,  3143;  in  Burns  Case,  id.,  3140;  in  Blumhardt  Case,  id.,  3146;  in  Smith 
Case,  id.,  3146.  Also  opinion  of  Ralston,  Umpire  in  De  Caro  Case,  Italian- 
Venezuelan  Commission,  1903,  Ralston's  Report,  810,  819 ;  Mr.  Clay,  Secy,  of 
State,  to  Mr.  Tacon,  Feb.  5,  1828,  MS.  Notes  to  For.  Leg.  Ill,  423,  Moore, 
Dig.,  VI,  652. 

1  See  interesting  opinion  of  Frazer,  Commissioner,  in  case  of  The  Brig 
Napier,  American-British  Claims  Commission,  treaty  of  May  8,  1871,  Moore, 
Arbitrations,  III,  3134 ;  also  ground  of  disallowance  of  demurrer  by  the  Com- 
mission in  this  and  similar  cases,  id.,  3157 ;  also  report  of  Hale,  Agent  of  the 
United  State,  id.,  3159. 

In  the  course  of  the  Russo-Japanese  War  the  seizures  of  American-chartered 
vessels  and  American  cargoes  by  Russian  naval  authorities,  and  the  deci- 
sions of  condemnation  by  the  Madivostok  prize  court  following  and  inter- 
preting a  Russian  Imperial  order  of  Feb.  29,  1904,  were  believed  by  the 
United  States  to  be  "in  disregard  of  the  settled  law  of  nations  in  respect 
to  what  constitutes  contraband  of  war",  Mr.  Hay,  Secy,  of  State,  to 
Mr.  McCormick,  American  Ambassador  to  Russia,  Aug.  30,  1904,  For.  Rel. 
1904,  760.  The  Russian  Government  informed  the  United  States  that  ap- 
peals could  be  taken,  and  that  a  final  decision  belonged  only  to  the  supreme 
prize  court  constituted  by  the  admiralty  board.  It  was  contended,  there- 
fore, that  until  the  decisions  were  reviewed  by  the  suprerne  court  "reclama- 
tions regarding  questions  of  fact  are  beyond  the  jurisdiction  of  the  imperial 
ministry  of  foreign  affairs."  Id.,  769.  The  Government  of  the  United  States 
thereupon  rendered  all  possible  assistance  to  claimants  in  taking  their  ap- 
peals. Id.,  777.  Considerable  difficulties  were,  however,  experienced  in  this 
regard,  owing  to  the  existence  of  a  state  of  war,  the  remote  theater  of  opera- 
tions, the  differences  in  procedure  of  Russian  and  American  Courts,  and  the 
uncertainty  of  American  claimants.  Id.,  1905,  743.  Decisions  were  duly 
rendered  by  the  Supreme  Court.     Id.,  753. 

See,  also,  The  Brig  Freemason  v.  United  States,  45  Ct.  CI.  555,  based  upon 

509 


§288]  RIGHTS  AND  DUTIES  Of  JURISDICTION 

(3) 

§  288.   Acts  of  Other  Civil  Officers. 

There  is  no  peculiar  rule  of  procedure  to  be  followed  in  cases 
where  the  acts  of  civil  officials  other  than  those  of  the  judicial 
department,  such  as,  for  example,  customs  officers,  are  the  subject 
of  complaint.  Difficulty  may  arise  in  ascertaining  whether  the 
particular  official,  at  the  time  of  his  misconduct,  was  acting  within 
the  scope  of  his  employment,^  or  whether  his  acts  constituted  a 
denial  of  justice.^  It  may  be  observed  again  that  the  inferiority 
of  rank  of  the  official  is  not  decisive  of  the  character  of  his  conduct, 
or  of  the  responsibility  of  the  State  for  the  consequences  thereof.^ 
Even  if,  however,  his  act  may  be  justly  regarded  as  internationally 
illegal,  the  obligation  of  the  territorial  sovereign  to  make  repara- 
tion through  the  diplomatic  channel  is,  on  principle,  contingent 
upon  its  failure  to  afford  the  claimant  an  adequate  means  of  re- 
dress through  a  remedy  either  against  the  offender,  or  against  the 
State  itself,  when  for  any  reason  the  prosecution  of  an  action 
against  the  former  would  appear  to  be  without  value.  When, 
therefore,  the  territorial  sovereign  meets  this  requirement,  inter- 
position is  believed  to  lack  justification  until  the  exhaustion  of 
the  judicial  remedy  has  proved  unavailing.^ 

the  treaty  between  the  United  States  and  France,  of  Sept.  30,  1800,  as  inter- 
preted in  the  case  of  The  Peggy,  1  Cranch,  103. 

1  Thus  in  the  (third)  Bensley  Case,  Mexican  Claims  Commission,  Act  of 
Cong.,  March  3,  1849,  Moore,  Arbitrations,  III,  3018,  the  act  complained  of  was 
regarded  as  outside  of  the  scope  of  the  authority  of  the  actor  —  the  Governor 
of  San  Luis  Potosi ;  see,  also,  Joseph  N.  Wilson  Case,  before  same  com- 
mission, id.,  .3021. 

2  See,  for  example,  (second)  Bensley  Case,  Mexican  Claims  Commission, 
Act  of  Cong.,  March  3,  1849,  Moore,  Arbitrations,  III,  3017. 

'  Arbitrators  have  oftentimes  lost  sight  of  this  fact,  even  when  they  have 
correctly  denied  redress  for  the  misconduct  of  petty  officials  in  cases  where 
local  remedies  have  not  been  exhausted.  See,  for  example,  Leichardt  Case, 
Mexican-American  Commission,  Convention  of  July  4,  1868,  Moore,  Arbi- 
trations, III,  3133,  3134  ;  (second)  Bensley  Case,  Mexican  Claims  Commission, 
Act  of  Cong.,  March  3,  1849,  id.,  3017. 

See  Case  of  outrages  on  George  Milliken  and  Simon  Shine,  American  citi- 
zens in  Guatemala  who  were  subjected  to  outrage  in  that  country  in  1907, 
For.  Rel.  1908,  410-417.  In  this  case  following  interposition,  indemnities 
were  paid  and  a  readiness  evinced  by  the  Government  of  Guatemala  to  re- 
move from  office  a  certain  officer.  The  State  Department  did  not  ask  for  his 
removal  but  merely  requested  that  he  be  reprimanded,  trusting  to  the  good 
offices  of  the  Guatemalan  Government  to  make  appropriate  disavowal  of 
wrongful  acts  committed. 

«  Mr.  Fi.sh,  Secy,  of  State,  to  Mr.  Ruger,  Oct.  21,  1869,  82  MS.  Dom.  Let. 
224,  Moore,  Dig.,  VI,  660 ;  Same  to  Messrs.  Geo.  Friend,  Jr.  &  Co.,  May  31, 
1871,  89  MS.  Dom.  Let.  449,  Moore,  Dig.,  VI,  660 ;  message  of  the  President 
to  the  Senate,  Feb.  8,  1889,  concerning  the  case  of  the  American  ship  Bridge- 
water,  S.  Ex.  Doc.  103,  50  Cong.,  2  Sess.,  Moore,  Dig.,  VI,  668 ;  Case  of  Dr. 
John  Baldwin.  Mexican-American  Commission,  Convention  of  April  11,  1839, 

510 


ACTS  OF  INDIVIDUALS  [§  289 

g 

Claims  Arising  from  Tortious  Acts  not  Primarily  Attributable     ^ 

to  the  State 

(1) 
§  289.   Acts  of  Individuals. 

The  wrongful  acts  of  individuals  directed  against  aliens  are  not 
primarily  attributable  to  the  territorial  sovereign,  in  the  absence 
of  proof  of  negligence  or  complicity  on  its  part.^  No  denial  of 
justice  is,  therefore,  apparent,  until  that  sovereign  fails  in  the  per- 
formance of  its  duties  of  jurisdiction,  either  by  thwarting  the  victim 
in  his  efforts  to  invoke  judicial  aid,  or  by  neglecting  to  take  appro- 
priate steps  to  prosecute  the  actor  when  his  conduct  has  been 
criminal.^    To  obtain  pecuniary  redress  the  victim  must  exhaust 

Moore,  Arbitrations,  III,  3126  ;  Wadsworth,  Commissioner  in  Leichardt  Case, 
Mexican-American  Commission,  Convention  of  July  4,  1868,  id.,  3133.  But 
see  contra,  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico, 
No.  25,  July  20,  1885,  MS.  Inst.  Mexico,  XXI,  337,  Moore,  Dig.,  VI,  679; 
also  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Morgan,  Minister  to  Mexico, 
May  19,  1884,  concerning  the  case  of  the  American  schooner,  E.  D.  Sidbury, 
No.  574,  MS.  Inst.  Mexico,  XXI,  82,  Moore,  Dig.,  VI,  679,  in  which  case  a 
Mexican  collector  of  customs  refused  to  obey  a  judicial  order  for  the  restora- 
tion of  the  vessel  which  had  been  seized  by  the  customs  authorities,  until  a 
final  order  was  issued  containing  the  intimation  that  non-comphance  there- 
with would  result  in  the  use  of  force.  See,  also,  John  C.  Jones  Case,  Mexi- 
can Claims  Commission,  Act  of  Cong.,  March  3,  1849,  Moore,  Arbitrations, 
III,  3018. 

It  is  to  be  doubted  whether  the  award  of  an  indemnity  in  the  Sheldon 
Lewis  Case,  American-British  Claims  Commission,  treaty  of  March  8,  1871, 
by  reason  of  the  action  of  customs  officials  in  New  York  in  wrongly  interpreting 
an  order  of  the  Secretary  of  the  Treasury,  was  sound.  Moore,  Arbitrations, 
III,  3019-3021.  The  contention  of  the  United  States  that  local  remedies  should 
have  been  exhausted,  was,  it  is  believed,  entitled  to  the  approval  of  more  than 
one  Commissioner  (Frazer). 

In  the  Lalanne  and  Ledour  Case,  French-Venezuelan  Commission,  1902, 
Ralston's  Report,  501,  in  which  damages  were  allowed  because  of  the  unjusti- 
fied refusal  of  customs  officials  to  clear  a  ship,  there  was  no  discussion  of  the 
question  as  to  the  duty  of  the  claimant  to  exhaust  his  judicial  remedies.  In 
the  Davy  Case,  British-Venezuelan  Commission,  1903,  Plumley,  Umpire, 
declared  that  the  claimant  was  not  obliged  to  resort  to  the  courts  for  his 
remedy  and  that  "where,  as  in  this  case,  there  has  been  an  agreed  submission 
of  the  claims  of  British  subjects  to  a  mixed  commission  created  to  consider 
them  the  tribunal  thus  constituted  has  undoubtedly  jurisdiction  of  the  parties 
and  of  the  subject  matter."     Ralston's  Report,  410,  412. 

1  "The  act  of  the  subject  can  never  be  the  act  of  the  sovereign;  unless 
the  subject  has  been  commissioned  by  the  sovereign."  The  Ship  Resolution, 
2  Dall.  1. 

2  Mr.  Lincoln,  Attv.-Gen.,  1  Ops.  Attvs.-Gen.,  106,  Moore,  Dig.,  VI,  787; 
Mr.  Forsyth,  Secy,  of  State,  to  Mr.  Calderon  de  la  Barca,  Sept.  17,  1839,  MS. 
Notes  to  Spain,  Vl,  39,  Moore,  Dig.,  VI,  787 ;  Mr.  Fish,  Secy,  of  State,  to  Mr. 
Mariscal,  Mexican  Minister,  Feb.  19,  1875,  For.  Rel.  1875,  II,  973,  Moore, 
Dig.,  VI,  788;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Rodriguez,  March  15, 
1887,  163  MS.  Dom.  Let.  306,  Moore,  Dig.,  VI,  790;  Mr.  Hay,  Secy,  of  State, 
to  Mr.  Fowler,  AprU  15,  1899,  236  MS.  Dom.  Let.  354,   Moore,  Dig.,  VI, 

511 


§  289]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

his  judicial  remedy  by  proceeding  directly  against  the  wrongdoer. 
It  is  the  absence  of  national  delinquency  rather  than  a  rule  of 
procedure  which  precludes  diplomatic  interposition. 

The  wrongful  act  may,  however,  be  of  a  kind  such  as  to  call  for 
instant  action  by  the  State  itself.  Thus,  for  example,  the  murder 
of  seven  Mexican  shepherds  in  Texas  in  1873,  required  immediate 
and  diligent  effort  on  the  part  of  the  local  authorities  to  discover 
and  prosecute  the  perpetrators.  It  is  believed  that  the  Mexican 
Minister,  Mr.  Mariscal,  was  justified  in  asserting  that  a  denial  of 
justice  was  apparent  in  the  attitude  of  the  authorities  of  Texas 
in  not  trying  to  discover  the  murderers  "by  all  the  means  used 
by  public  authorities  in  civilized  countries  (such  as  Texas  doubt- 
less is)  for  the  discovery  of  the  perpetrators  of  any  crime  which 
is  not  a  mere  injury  or  offense  of  a  private  character,  as  murder 
never  has  been."  ^  He  was  also  correct  in  declaring  in  substance 
that  the  obligation  to  take  measures  for  the  detection  of  the  wrong- 
doers was  not  dependent  upon  the  furnishing  of  information  on 
oath  as  to  the  facts  and  as  to  the  perpetrators.^ 

When  American  citizens  have  sustained  criminal  violence  at 
the  hands  of  individuals  in  foreign  countries,  the  United  States 

792.  See,  also,  Mr.  Scruggs,  Umpire,  Cotesworth  &  PoweU  Case,  Conven- 
tion between  Great  Britain  and  Colombia,  of  Dec.  14,  1872,  Moore,  Arbitra- 
tions, 2053,  2082 ;  Wipperman  Case,  American-Venezuelan  Claims  Com- 
mission, Convention  of  Dec.  5,  1885,  id.,  3039 ;  Thornton,  Umpire,  in  Dickens 
Case,  Mexican-American  Commission,  Convention  of  July  4,  1868,  id.,  3037. 

1  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Hoshi,  Japanese  Minister,  March 
31,  1897,  For.  Rel.  1897,  368,  Moore,  Dig.,  VI.  791,  regarding  failure  of  local 
authorities  to  prevent  boycott  against  Japanese  subjects  in  Montana.  Com- 
-pare  position  of  the  United  States  in  demanding  of  China,  in  1905,  the  sup- 
pression of  a  boycott  of  American  goods  in  that  country.  The  demand  was 
based  upon  the  contention  that  the  boycott  was  in  violation  of  treaty  pro- 
visions, contrary  to  the  law  of  China,  and  encouraged  by  persons  of  official 
rank.     For.  Rel.  1905,  204-234. 

-  Communication  to  Mr.  Fish,  Secy,  of  State,  April  17,  1875,  For.  Rel. 
1875,  II.  982,  983,  Moore,  Dig.,  VI,  787,  789. 

'  Mr.  Fish,  Secretary  of  State,  had  admitted  the  duty  of  a  State  to  prose- 
cute such  offenders  according  to  the  law  by  all  the  means  in  its  power ,  but 
he  insisted  that  no  person  could  be  arrested  upon  suspicion  of  having  com- 
mitted a  crime  except  upon  the  affidavit  of  a  credible  witness,  and  he  ad- 
verted to  the  fact  that  murder  could,  in  the  United  States,  only  be  prosecuted 
upon  information  under  oath,  and  he  stated  that  the  Department  was  not  aware 
that  such  information  had  been  furnished.  It  is  believed  that  these  sug- 
gestions were  inept.  The  public  duty  to  prosecute  embraced  the  duty  to 
investigate  and  make  reasonable  efforts  to  detect  the  murderers.  Fulfillment 
of  the  latter  would  doubtless  have  established  the  foundation  for  criminal 
prosecution  by  indictment.  Failure,  however,  in  this  regard  did  not  shift 
to  the  Mexican  Government  or  to  interested  friends  of  the  victims  the  burden 
of  securing  evidence  sufficient  to  justify  complaints  on  information  under 
oath  specifying  the  offenders.  It  is  to  be  regretted,  therefore,  that  the  United 
States  persisted  in  its  refusal  to  grant  redress.  The  correspondence  with  the 
Mexican  Legation  is  contained  in  For.  Rel.  1875,  II,  954-985,  and  id.,  1888, 
II,  1306-1308.     An  abstract  is  contained  in  Moore,  Dig.,  VI,  787-790. 

512 


ACTS  OF  INDIVIDUALS  [§  289 

has  declared  it  to  be  "  the  duty  of  the  State  dihgently  to  prosecute 
and  properly  punish  the  offenders,"  maintaining  that  "for  its 
refusal  to  do  so  it  may  be  held  answerable  for  pecuniary  damages."  ^ 
This  principle  has  been  invoked  in  discussion  where  it  has  appeared, 
as  in  the  case  of  Frank  Lentz,^  an  American  citizen  murdered  in 
Kurdistan  in  1894,  and  in  that  of  Charles  W.  Renton,^  an  American 
citizen  whose  wife  and  niece  were  abducted,  his  property  destroyed 
or  appropriated  and  himself  murdered  in  Honduras,  that  there  was 
gross  negligence,  if  not  complicity,  on  the  part  of  local  officials  in 
permitting  the  escape  from  their  custody  of  the  guilty  parties. 

In  some  instances  American  citizens  in  foreign  countries  have 
suffered  injury  to  their  persons  or  property  through  the  acts  of 
bands  of  brigands,  and  frequently  under  circumstances  indicating 
neglect  on  the  part  of  the  territorial  sovereign  to  afford  protection 
or  to  prosecute  the  wrongdoers."*  WTien  the  Department  of  State 
has  believed  the  victims  to  be  entitled  to  redress  from  the  terri- 
torial sovereign,  they  have  not  been  left  to  their  own  resources, 

'  The  language  quoted  is  that  of  Mr.  Hay,  Secy,  of  State,  in  a  communi- 
cation to  Mr.  Combs,  Minister  to  Guatemala  and  Honduras,  Feb.  25,  1904, 
concerning  the  claim  of  Mrs.  Charles  W.  Renton  against  Honduras,  For.  Rel. 
1904,  352,  363,  Moore,  Dig.,  VI,  798. 

2  Concerning  the  Lentz  Case,  see  Report  of  Mr.  Olney,  Secy,  of  State,  to 
the  President,  Dec.  19,  1895,  For.  Rel.  1895,  II,  1257,  1316,  1332,  id.,  1899, 
766-767,  Moore,  Dig.,  VI,  792-794. 

'  In  the  Renton  Case,  the  gross  misconduct  of  the  officials  of  Honduras 
was  apparent  also  in  other  ways.  A  United  States  Naval  board  "found  that 
Mrs.  Renton's  claim  for  $37,420  was  a  just  one;  that  all  the  portable  prop- 
erty on  Renton's  place  at  the  time  of  his  murder  had  since  been  either  de- 
stroyed or  appropriated  by  the  company ;  that  the  Honduran  authorities  had 
taken  no  steps  to  prevent  such  destruction  or  appropriation,  and  that  all 
legal  steps  taken  by  them  in  relation  to  the  murder  of  Renton,  the  abduc- 
tion of  his  wife  and  niece,  the  burning  of  his  dwelling,  and  the  robbery  of  his 
personal  property  were  either  half-hearted  and  farcical,  or  were  smothered 
at  the  outset  bv  bribery  and  corruption."  Statement  in  Moore,  Dig.,  VI, 
796.  Concerning  the  case  see  For.  Rel.  1904,  352-369,  Moore,  Dig.,  VI, 
794-799. 

See  Baron  Komura,  Japanese  Minister  of  Foreign  Affairs,  to  Mr.  Griscom, 
American  Minister,  March  4,  1904,  respecting  the  vigorous  efforts  taken  at 
the  suggestion  of  the  United  States  to  pimish  the  natives  of  Botel  Tobago, 
who,  in  1903,  had  murdered  shipwrecked  seamen  of  the  American  ship  Benja- 
min Sewell,  For.  Rel.  1904,  444,  also  Moore,  Dig.,  VI.  799. 

Concerning  case  of  the  murder  of  the  American  Vice-Consul  Stuart,  a 
British  subject,  at  Batum,  in  1906,  see  For.  Rel.  1906,  II,  1290-1295. 

*  Attention  i=^  called  to  Case  of  Knapp  and  Revnolds  (Turkev),  1883,  For. 
Rel.  1883,  1884,  1885,  1889  and  1890,  Moore,  Dig.,  VI,  800-801 ;  Case  of 
L.  M.  Baldwin  (Mexico),  1887,  For.  Rel.  1888,  Moore,  Dig.,  VI,  801-806; 
Marauders  in  Peru,  1899,  Moore,  Dig.,  VI,  806;  Case  of  Ion  Perdicaris  (Mo- 
rocco), 1904,  For.  Rel.  1904,  Moore,  Dig.,  VI,  807;  Case  of  Rev.  B.  W.  Laba- 
ree  (Persia),  1904,  For.  Rel.  1904,  1905,  1906,  1907,  1908,  in  part  in  Moore, 
Dig.,  VI,  806-807. 

In  the  Case  of  L.  M.  Baldwin  (Mexico),  1887,  amplest  notice  was  given  to 
both  State  and  Federal  authorities  of  the  lawless  proceedings  of  those  who 
committed  the  crime.  Their  depredations  had  been  long  continued  and  the 
offenders  were  well  known.     No  serious  steps  were  taken  to  afford  protection. 

513 


§  289]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

or  been  called  upon  by  the  United  States  to  press  their  legal  rem- 
edies through  domestic  channels.  Nor  has  it  often  been  urged 
by  respondent  States  that  interposition  was  premature  or  unrea- 
sonable.^ Such  action  on  the  part  of  the  United  States  has  usually 
been  justified  not  merely  because  the  territorial  sovereign  was  de- 
linquent in  the  matter  of  prevention  or  prosecution,  but  rather 
for  the  reason  that  the  form  of  delinquency  was  such  as  to  destroy 
all  reasonable  expectation  of  securing  justice  through  domestic 
channels,  or  because  no  process  was  known  whereby  the  terri- 
torial sovereign  was  obliged  to  respond  in  damages  to  the  suit  of  a 
private  claimant.^ 

A  situation  may  arise  where  brigandage  becomes  rampant 
throughout  a  portion  of  the  State  whose  government  is  deemed 
to  evince  a  chronic  attitude  of  passivity  or  tolerance.  In  such 
case  the  mere  frequency  and  success  with  which  bandits  carry  on 
their  operations  cannot  be  acknowledged  as  indicative  of  inability 
on  the  part  of  the  territorial  sovereign  to  rid  the  country  of  such 
individuals.^     There  may  be  little  ground  for  the  inference  that  it 

Mr.  Bayard,  Secv.  of  State,  to  Mr.  Bragg,  Minister  to  Mexico,  No.  8,  March 
15,  1888,  For.  Rel.  1888,  II,  1144,  Moore,  Dig.,  VI,  801,  Mr.  Blaine,  Secy, 
of  State,  to  Mr.  Dougherty,  Charge,  No.  4,30,  Jan.  5,  1891,  MS.  Inst.  Mexico, 
XXIII,  14,  21,  Moore,  Dig.,  VI,  802.  See,  also,  Mr.  Bacon,  Acting  Secy,  of 
State,  to  Mr.  Leishman,  American  Ambassador  to  Turkey,  July  2,  1907,  For. 
Rel.  1907,  II,  1072. 

1  In  the  Knapp  and  Reynolds  Case,  the  Turkish  Government  informed 
General  Wallace,  American  Minister,  April  6,  1885,  "that  in  penal  matters 
there  is  no  provision  giving  a  private  individual,  who  considers  himself  injured 
in  his  rights,  permission  to  claim  pecuniary  indemnity  from  the  State.  ...  I 
believe,  however  .  .  .  that  it  is  lawful  for  the  parties  interested  to  bring  suit 
against  the  magistrates  for  prejudice  to  their  cases  by  reason  of  irregularities 
in  the  proceedings."  For.  Rel.  1885,  847.  See  response  of  Mr.  Bayard,  Secy, 
of  State,  Aug.  17,  1885,  id.,  859. 

In  the  L.  M.  Baldwin  Case,  the  Mexican  Minister,  Mr.  Mariscal,  "in- 
voked the  familiar  rule  that  the  claimants  must  pursue  their  remedies  in  the 
courts  of  the  countrv  before  they  can  resort  to  diplomatic  interposition." 
Mr.  Blaine,  Secy,  of  State,  to  Mr.' Dougherty,  Charge,  No.  430,  Jan.  5,  1891, 
MS.  Inst.  Mexico,  XXIII,  14,  21,  Moore,  Dig.,  VI,  802,  805. 

2  Declared  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Dougherty,  Charge,  Jan.  5, 
1891,  in  the  L.  M.  Baldwin  Case,  "This  Government  is  not  aware  of  any  courts 
or  of  any  processes  by  which  the  issue  could  be  tried  and  redress  obtained  by 
the  claimant  in  Mexico.  Nor,  where  the  question  presented  is  whether  the  Gov- 
ernment of  a  country  has  discharged  its  duty  in  rendering  protection  to  the 
citizens  of  another  nation,  can  it  be  conceded  that  that  government  is  to  be 
the  judge  of  its  own  conduct."  Moore,  Dig.,  VI,  805.  See,  also,  opinion 
of  Ralston,  Umpire,  in  the  Poggioli  Case,  Italian-Venezuelan  Commission, 
1903,  Ralston's  Report,  847,  869. 

'  Concerning  the  notorious  failure  of  Mexican  governmental  authorities,  for 
a  protracted  period  between  1911  and  May.  1920,  to  prevent  or  check  the 
recurrence  of  acts  of  brigandage  directed  against  American  life  and  property 
in  various  parts  of  Mexican  territory,  see  Investigation  of  Mexican  Affairs, 
Preliminary  Report  (May  28,  1920)  and  Hearings  of  the  Committee  on  For- 
eign Relations,  United  States  Senate,  pursuant  to  S.  Res.  106,  Senate  Doc. 
No.  285,  66  Cong.,  2  Sess. 

514 


ACTS  OF  INDIVIDUALS  [§  289 

has  made  full  use  of  the  means  at  its  disposal  to  suppress  and 
punish  the  actors.      Evidence  of  failure  in  this  regard  clearly  v 
justifies  interposition.     Evidence  of  protracted  impotence  or  un- 
concern not  only  justifies  sterner  measures,  but  also  serves  in  fact 
to  arouse  aggrieved  States  to  make  use  of  tliem.^ 

When  the  denial  of  justice  is  confined  to  neglect  in  the  matter 
of  prosecution,  and  no  delinquency  is  apparent  in  the  matter  of  j 
protection  or  prevention,  the  United  States  commonly  interposes 
and  demands  an  indemnity.  In  some  of  these  cases  the  neglect 
of  the  territorial  sovereign,  although  subsequent  to  the  acts 
of  violence,  has  produced  added  harm,  where,  for  example,  it 
has  deprived  the  victims  of  the  means  of  ascertaining  the  iden- 
tity of  their  assailants  and  of  subjecting  them  to  civil  suits  for 
damages.^  In  other  cases,  where  such  a  result  has  not  followed, 
the  United  States  has,  nevertheless,  not  refrained  from  making  a 
similar  demand.  The  amount  of  indemnity  requested  and  ob- 
tained appears,  at  times,  to  have  been  out  of  proportion  to  the 
pecuniary  loss  sustained  by  the  victims  or  their  dependents  in 
consequence  of  the  laches  of  the  territorial  sovereign.^  In  demand- 
ing the  payment  of  money,  and  in  applying  the  sum  received  even 
for  the  benefit  of  those  directly  affected  by  the  ill-treatment  of 
the  victims,  the  United  States  has  in  reality  exacted  a  penalty 
on  account  of  the  denial  of  justice.  Possibly  justification  for  so 
doing  is  to  be  found  in  the  difficulty  in  distinguishing  cases  where 

1  See,  in  this  connection,  Mr.  Lansing,  Secy,  of  State,  to  the  Secretary  of 
Foreign  Relations  of  the  de  facto  government  of  Mexico,  June  20,  1916,  Am.  J., 
X.,  Supp.,  211;    The  Pursuit  of  Villa,  §  67. 

-  This  was  notably  true  in  the  case  of  the  Mexican  shepherds  murdered 
in  Texas  in  1873.     It  has  also  been  true  in  certain  cases  of  mob  violence. 

^  The  situation  has  resembled  that  in  private  law  where,  by  virtue  of  a 
penal  statute,  an  individual  is  enabled  to  obtain  from  one  who  violates  the 
statute,  damages  which,  however  remedial,  serve  to  do  more  than  compen- 
sate the  plaintiff  for  any  loss  which  he  has  sustained  from  the  acts  of  the  de- 
fendant. 

Respecting  the  Case  of  Frank  Lentz  murdered  by  brigands  in  Kurdistan 
in  1894,  Mr.  Hav,  Secy,  of  State,  declared  that  if  the  "murderers  had  been 
duly  punished,  this  Government  would  not  have  felt  disposed  to  demand  an 
indemnity ",  but  because  a  light  puni-^hment  was  inflicted  and  the  guilty 
parties  permitted  to  escape,  the  United  States  demanded  and  secured  a  con- 
siderable sum  for  the  parents  of  the  deceased.  Communication  to  Mr.  Straus. 
Minister  to  Turkey,  March  25,  1899,  For.  Rel.  1899,  7(J6-767,  Moore,  Dig.. 
VI,  794.  It  is  difficult  to  see  how  the  parents  of  the  victim  in  this  particular 
case  sustained  any  pecuniary  loss  through  the  misconduct  of  the  Turkish 
Government,  in  lightly  prosecuting  the  wrongdoers  or  in  i)ermitting  them  to 
escane. 

When  the  territorial  sovereign  has  shown  diligence  in  the  matter  of  prose- 
cution, and  has  not  failed  in  the  matter  of  protection,  the  Department  of 
State  has  not  been  disposed  to  demand  an  indemnitv.  Mr.  Hav.  Secv.  of 
State,  to  Mr.  Dudlev,  Minister  to  Peru,  No.  210,  Sept.  5,  1899,"  MS.  Inst. 
Peru,  XVIII,  177,  Moore,  Dig.,  VI,  806. 

515 


§  289]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

the  neglect  to  prosecute  lessens  or  destroys  the  value  of  the  local 
right  of  the  victims  or  their  dependents  to  sue  the  wrongdoers, 
from  cases  where  no  such  injury  or  loss  is  sustained  ;  and  secondly, 
in  the  value  of  exemplary  reparation  as  a  deterrent  of  misconduct 
otherwise  to  be  anticipated.^ 

2 
Mob  Violence 

(a) 

§  290.    Claims  against  the  United  States. 

Numerous  demands  for  redress  for  the  consequences  of  mob 
violence  have,  in  years  past,  been  preferred  against  the  United 

1  "The  rule  of  the  law  of  nations  is  that  the  Government  which  refuses  to 
repair  the  damage  committed  by  its  citizens  or  subjects,  to  punish  the  guilty 
parties  or  to  give  them  up  for  that  purpose,  may  be  regarded  as  virtually  a 
sharer  in  the  injury  and  as  responsible  therefor."  Mr.  Fish,  Secy,  of  State, 
to  Mr.  Foster,  Minister  to  Mexico,  No.  21,  Aug.  15,  1873,  MS. 'inst.  Mex. 
XIX,  18,  ciiinq  Calvo,  Droit  Int.,  II,  397,  Moore,  Dig.,  VI,  655.  In  the  Case 
of  Rev.  B.  W.  Labaree,  an  American  missionary,  murdered  by  a  band  of 
Kurds  near  Urumia,  Persia,  in  1904,  the  relation  of  the  indemnity  to  the 
prosecution  of  certain  accessories  to  the  murder,  became  the  matter  of  dip- 
lomatic discussion.  It  was  reported  that  the  chief  ecclesiastic  of  Urumia 
had  instigated  the  crime  and  sheltered  the  criminals.  For.  Rel.  1904,  659- 
660.  The  reported  failure  of  the  Persian  Government  to  punish  the  mur- 
derers impelled  the  United  States  to  demand  an  indemnity  of  fiftj^  thousand 
dollars  in  behalf  of  the  widow  and  children.  Id.,  675-676.  An  arrangement 
for  settlement  was,  however,  made  on  the  following  basis :  The  imprisonment 
of  the  principal  murderer  who  had  been  caught,  the  arrest  and  punishment 
of  the  accomplices,  and  the  payment  of  fifty  thousand  dollars  in  gold,  of  which 
sum  thirty  thousand  dollars  was  to  be  paid  at  once  to  the  American  Minister 
and  the  balance  of  twenty  thousand  dollars  was  to  be  paid  to  him  in  case 
of  the  escape  from  prison  of  the  principal  murderer  through  official  negli- 
gence or  connivance,  or  in  case  the  known  accomplices  identified  as  partici- 
pants were  not  captured  and  punished  by  a  fixed  date,  or  if  any  portion  of  the 
indemnity  should  be  exacted  from  the  Christian  population  in  Urumia  or 
elsewhere  in  Persia.  Id.,  1905,  723.  The  chief  accomplices  were  captured, 
brought  to  the  capitol,  there  held  for  seven  months,  and  then  remanded  to 
Urumia  for  trial;  but  they  escaped  or  were  liberated  on  the  way.  Id.,  1906, 
II,  1209.  In  re=;ponse  to  the  suggestion  that  the  Kurdish  tribes  in  sj^mpathy 
with  the  accused  persons  would  pay  the  widow  the  twenty  thousand  dollars 
which  was  conditionally  abated,  as  a  substitute  for  the  punishment  of  the 
accused,  the  Persian  Government  was  informed  that  "gold  cannot  atone  for 
American  blood",  and  that  punishment  according  to  the  measure  of  guilt  was 
the  only  reparation  acceptable  to  the  United  States.  Id.  Then  the  effort 
was  made  by  the  Persian  Government  to  settle  finallv  the  controversy  by 
paying  to  the  American  Minister  the  twenty  thousand  dollars  for  the  bene- 
fit of  the  widow  and  children.  This  offer  was  rejected.  7c?.  II,  1215.  There- 
upon through  its  Legation  at  Washington  the  Persian  Government  sug- 
gested that  the  punishment  of  the  accomplices  take  the  form  of  a  fine  rather 
than  imprisonment.  Id.  1907,  II.  941.  There  was  some  misunderstanding 
as  to  the  exact  meaning  of  this  offer.  Mr.  Root,  Secy,  of  State,  took  occa- 
sion to  point  out  the  distinction  between  the  "remedial  reparation  due  to  the 
widow",  which  had  been  fully  made  and  the  "exemplary  redress  due  to  the 

516 


CLAIMS  AGAINST  THE  UNITED  STATES  [§  290 

States.  A  denial  of  justice  has  usually  been  apparent,  for  the  at- 
tending circumstances  have  commonly  revealed  gross  neglect  on 
the  part  of  local  authorities  either  to  prevent  what  occurred  or  to 
prosecute  the  WTongdoers.^     Trivial  effort  to  afford  protection  has 

Government  of  the  United  States."  He  added  that  that  Government  would 
not  accept  blood  money  from  Persia  or  from  innocent  Persians  in  substitu- 
tion of  the  just  claim  that  punishment  be  visited  upon  the  guilty ;  and  that 
that  punishment,  of  whatsoever  form,  should  possess  an  exemplary  char- 
acter and  effect  a  deterrent  purpose.  He  also  suggested  that  a  monej'  pen- 
alty exacted  as  punishment,  if  devoted  to  the  erection  of  a  memorial  structure, 
such  as  a  hospital,  would  serve  as  a  lasting  lesson  in  favor  of  law  and  order. 
For.  Rel.  1907,  II,  943,  944.  It  later  appearing  that  the  principal  murderer 
had  died  in  jail,  that  some  of  his  .accomplices  had  been  killed  in  skirmishes, 
and  that  all  the  others  were  on  Turkish  soil,  the  United  States  agreed  to 
abandon  further  insistence  on  the  exaction  of  a  pecuniary  indemnity  from  their 
relatives,  and  to  consider  the  matter  closed,  with  the  understanding  that  the 
Persian  Government  would  visit  punishment  upon  the  fugitives  should  they 
return  to  its  territory.     Id.,  II,  947-948;   id.,  1908,  680-681. 

See,  also,  opinion  of  Plumley,  Umpire,  in  the  Maal  Case,  Netherlands- 
Venezuelan  Commission,  1903,  Ralston's  Report,  914,  916. 

1  Attention  is  called  to  the  following  cases :  Spanish  Consul  and  Spanish 
subjects  at  New  Orleans,  1851,  Moore,  Dig.,  VI,  811-815,  and  documents 
there  cited;  Chinese  at  Denver,  1880,  For.  Rel.  1881,  319-337,  Moore.  Dig., 
VI.  820-822;  Chinese  at  Rock  Springs,  Wvoming,  1885,  For.  Rel.  1886, 
101-168.  Moore,  Dig.,  VI,  822-835;  Italians  at  New  Orleans,  1891,  For. 
Rel.  1891.  658-728,  Moore,  Dig.,  VI,  837-841 ;  James  Bain,  a  British  sub- 
ject, at  New  Orleans.  1895,  For.  Rel.  1895,  I,  686-696,  For.  Rel.  1896,  298- 
301,  Moore,  Dig.,  VI.  849-850;  Italians  at  Walsenburg,  Colorado,  1895, 
For.  Rel.  1895,  II,  938-956,  Moore,  Dig.,  VI,  841-843;  Mexicans  at  Yreka, 
California,  1895,  Moore,  Dig.,  VI,  851,  and  documents  there  cited;  Italians 
at  Hahn\alle,  La.,  1896,  For.  Rel.  1896,  Ixxvi,  396-422,  For.  Rel.  1897, 
35.3-354,  Moore,  Dig.,  VI,  843-845;  Italians  at  Tallulah,  La.,  1899,  For.  Rel. 
1899,  xxii,  440-466,  For.  Rel.  1900,  xxii,  715-731,  Moore,  Dig.,  VI,  845- 
848;  Italians  at  Irwin,  Miss.,  1901,  For.  Rel.  1901,  283-299,  Moore,  Dig. 
VI,  848-849;  nationals  of  Austria-Hungary,  Greece,  and  Turkey,  at  South 
Omaha,  1909,  House  Doc.  No.  576,  64  Cong.,  1  Sess. ;  Angelo  Albano,  an 
Italian  killed  in  Florida,  1910,  Senate  Rep.  No.  118,  63  Cong.,  1  Sess.;  Al- 
bert Piazza,  and  J.  Speranza,  Italians  killed  in  Illinois,  1914  and  1915,  re- 
spectively, reported  by  C.  H.  Watson,  in  Yale  Law  J.,  XXV,  561-581. 

Attention  is  also  regretfully  called  to  the  deplorable  case  at  Rock  Springs, 
Texas,  where  in  1910.  following  the  killing  of  certain  officers  by  a  body  of 
Mexicans  who  had  crossed  the  Rio  Grande  at  San  Benito,  one  Antonio  Ro- 
driguez was  burned  alive  on  account  of  the  rape  and  murder  of  an  American 
woman.     P'or.   Rel.   1911,  349  and  354. 

Between  Aug.  5  and  8,  1920,  certain  Italians  at  West  Frankfort,  111.,  were 
victims  of  mob  \iolence,  which  caused  the  death  of  one  Luigi  Carrero  and  the 
destruction  and  loss  of  much  property.  The  perpetrators  remain  as  yet  uncon- 
victed of  any  crime. 

See,  also,  the  case  of  Etienne  Derbec,  before  Commission  under  convention 
between  the  United  States  and  France  of  Jan.  15.  1880,  Moore,  Arbitrations, 
3029;  James  Brvce,  "Legal  and  Constitutional  Aspects  of  the  Lvnching 
at  New  Orleans"^  New  Review  (London,  1891),  IV,  385;  J.  B.  Moore.  "Re- 
sponsibility of  Government  for  ^lob  Violence  ",  Columbia  Laio  Times,  V,  211 ; 
E.  W.  HufTcut,  "International  Liabilitv  for  Mob  Injuries  ",  Annals,  Am.  Acad- 
emy. Pol.  &  Soc.  Sc,  II,  69  ;  H.  Arias,'"  The  Non-Liability  of  States  for  Dam- 
ages Suffered  by  Foreigners  in  the  Course  of  a  Riot,  an  Insurrection  or  a  Civil 
War",  Am.  J.,  VII.  724;  JuHus  Goebcl,  Jr.,  "International  Responsibility 
of  States  for  Injuries  Sustained  by  Aliens  on  Account  of  Mob  Violence,  In- 
surrections and  Civil  Wars",  Am.  ./..  VIII.  802.  All  of  these  monographs 
have  been  noted  by  Dr.  Borchard  in  his  Diplomatic  Protection  §  89.     See,  also 

517 


§  290]  RIGHTS  AND  DUTIES  OF  JURISDICTION 

at  times  been  the  only  response  to  warnings  of  the  violence  to  be 
anticipated.^ 

The  attempts  to  prosecute  have  usually  been  a  travesty  on 
justice.  Inquests  over  the  remains  of  victims  have  been  pur- 
poseless. Oftentimes  local  officials  have  failed  to  discover  any 
responsible  perpetrators  of  the  acts  committed.  Even  when  such 
persons  have  been  known,  grand  juries  have  usually  failed  to 
indict.^  In  one  instance  the  action  of  such  a  body  was  aptly  de- 
scribed as  a  burlesque.^ 

When  the  violence  has  occurred  within  the  domain  of  any  State 
of  the  Union,  the  National  Government,  by  reason  of  the  lack  of 
a  Federal  lawpermitting  it  to  instigate  criminal  proceedings  therein, 
has  been  obliged  to  content  itself  with  requesting  the  Governor 
of  such  State  to  set  in  motion  the  local  machinery  of  justice,  or 
with  sending  an  agent  to  make  an  investigation  or  to  observe  any 
local  judicial  proceedings.  Frequently  a  painful  lack  of  efficiency 
or  zeal  on  the  part  of  local  officials  entrusted  with  the  duty  of 
prosecution  has  resulted  in  a  miscarriage  of  justice. 

In  the  earlier  cases  it  was  stoutly-  maintained  that  there  was  no 
legal  duty  on  the  part  of  the  United  States  to  pay  indemnities.'* 
This  was  due,  at  least  in  one  instance,  to  the  fact  that  national 
responsibility  for  the  occurrence  was  denied,  and  such  denial  was 
based  upon  the  assertion  that  there  had  been  no  neglect  in  the 
matter  of  protection  or  prosecution.^     Constitutional  reasons  for 

discussion,  Borchard,  Diplomatic  Protection,  §§89-92;  Charles  H.  Watson, 
"Need  of  Federal  Legislation  in  Respect  to  Mob  Violence  in  Cases  of  Lynch- 
ing of  Aliens  ",  Yale  Law  J.,  XXV,  561. 

^  This  was  true  in  the  ease  of  the  lynching  of  Itahans  at  New  Orleans,  in 
1891.  Baron  Fava,  ItaUan  Minister,"  to  Mr.  Blaine,  Secv.  of  State,  March 
15,  1891,  and  March  18,  1891,  with  enclosure,  For.  Rel.  1891,  666  and  668, 
respectively.  It  may  have  also  been  true  in  the  case  of  the  Ij^nching  of  Ital- 
ians at  Hahnville,  La.,  in  1896.  Such  at  least  was  the  contention  of  the 
Italian  Embassy.  See  For.  Rel.  1896,  412,  413,  in  response  to  the  suggestion 
of  the  Department  of  State  that  all  normal  precautions  for  the  safety  of  the 
prisoners  had  been  taken.  Id.,  409-410.  In  the  cases  of  Itahans  at  Walsen- 
burg,  Colorado,  in  1895,  at  Tallulah,  La.,  in  1899,  and  Irwin,  Miss.,  in  1901, 
neglect  in  the  matter  of  protection  was  not  apparent,  and  if  it  existed,  such 
delinquency  was  overshadowed  in  all  but  one  of  these  cases  by  the  evidence 
of  neglect  with  respect  to  prosecution. 

-  In  the  case  of  Italians  at  Tallulah,  La.,  1899,  the  Italian  Embassy  fur- 
nished the  names  of  persons  believed  to  have  been  active  participants.  For. 
Rel.  1900,  715-718.     No  persons  were  indicted. 

2  Mr.  Cheng  Tsao  Ju,  Chinese  Minister,  to  Mr.  Bayard,  Secy,  of  State, 
Nov.  30,  1885,  respecting  the  Rock  Springs  Case,  For.  Rel.  1886,  102,  Moore, 
Dig.,  VI,  823. 

*  Statement  of  Mr.  Moore,  in  Moore,  Dig.,  VI,  809.  Such  was  the  posi- 
tion of  Mr.  Webster  in  1851  in  the  New  Orleans  case,  of  Messrs.  Evarts  and 
Blaine  in  1881,  as  to  the  Denver  case  of  the  previous  year,  and  of  IMr.  Baj-ard 
in  1886,  in  the  Rock  Springs  case. 

*  In  the  case  of  Chinese  subjects  who  were  victims  of  mob  violence  in 

518 


CLAIMS  AGAINST  THE  UXITED  STATES  [§  290 

the  inaction  of  the  Federal  Government,  in  view  of  the  existing 
state  of  law,  were  also  emphasized.^  Even  where  neglect  on  the 
part  of  local  authorities  was  admitted,  the  obligation  to  respond 
in  damages  was  not  acknowledged.  ^Moreover,  in  one  such  case 
it  was  grimly  announced  that  the  courts  were  open  to  the  alien 
victims  or  their  dependents  who  should  therein  exliaust  their 
judicial  remedies.-  While  such  a  contention  would  have  been 
sound  if  the  WTongful  acts  had  been  chargeable  solely  to  private 
individuals,  it  was  not  applicable  where,  through  the  laches  of 
public  officials,  there  had  been  a  denial  of  justice,  unless  the  nation 
or  some  agency  thereof  afforded  not  merely  free  access  to  the 
courts,  but  also  the  means  whereby  the  public  treasury  should  be 
chargeable  with  the  payment  of  such  compensatory  damages  as 
should  be  judicially  awarded.  As  no  such  remedy  was  available 
the  demand  for  redress  through  the  diplomatic  channel  found 
ample  warrant. 

Colorado  in  1880,  the  duty  to  pay  an  indemnity  was  denied  by  Mr.  Evarts, 
Secretary  of  State,  chiefly  because  he  was  of  opinion  that  there  had  been  no 
neglect  on  the  part  of  the  local  authorities  in  suppressing  the  mob.  For. 
Rel.  1881,  319-320.  The  Chinese  Minister,  INlr.  Chen  Lan  Pin,  thereupon 
called  attention  to  the  verdict  of  the  coroner's  jury  imputing  neglect  to  the 
local  police  force,  and  declaring  that  its  incompetency  and  inefficiency  as  well 
as  the  failure  of  county  authorities  to  render  necessarj'  aid,  enabled  the  mob 
to  destroy  human  life.  Id.,  321,  322.  Mr.  Blaine,  who  succeeded  Mr.  Evarts 
as  Secretary  of  State,  approving  of  the  attitude  of  his  predecessor,  was  of 
opinion  that  while  at  the  outset  one  or  two  local  functionaries  might  have 
"shown  some  timidity  and  hesitation",  a  more  successful  resistance  to  a  mob 
of  such  character  and  numbers  could  not  be  found  in  the  history  of  any  com- 
munity or  country.  He  adverted  also  to  the  fact  that  certain  ringleaders 
had  been  arrested,  and  that  two  of  them,  identified  as  assailants  of  a  Chinese 
victim,  were  held  for  trial  for  murder.     Id.,  335-336. 

1  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Chen  Lan  Pin,  Chinese  Minister,  Dec. 
30,  1880,  For.  Rel.  1881,  319,  Moore,  Dig..  VI,  820;  Mr.  Bavard,  Secy,  of 
State,  to  Mr.  Chen  Tsao  Ju,  Feb.  18,  1886,  For.  Rel.  1886,  158,  160 ;  see, 
also,  Robert  Lansing,  Proceedings,  Am.  Soc,  II,  44,  52-53 ;  Elihu  Root,  id., 
111,16,24. 

-  In  the  deplorable  instance  of  mob  violence  at  Rock  Springs,  Wyoming, 
Sept.  2,  1885,  twenty-eight  Chinese  subjects  were  killed,  fifteen  were  wounded, 
and  property  of  considerable  value  destroyed  or  appropriated.  For.  Rel. 
1886,  101-168.  Mr.  Bayard,  Secretary  of  State,  denied  emphatically  all 
liability  on  the  part  of  the  United  States  to  indemnify  any  individuals,  and 
declared  with  equal  emphasis  that  "just  and  ample  opportunity  is  given  to 
all  who  suffer  wrong  and  seek  reparation  through  the  channels  of  justice  as 
conducted  by  the  judicial  branch  of  our  Government."  He  stated,  how- 
ever, that  as  there  was  a  "gross  and  shameful  failure  of  the  police  authorities 
at  Rock  Springs,  in  Wyoming  Territory,  to  keep  the  peace,  or  even  to  attempt 
to  keep  the  peace,  or  to  make  proper  efforts  to  uphold  the  law,  or  punish 
the  criminals,  or  make  compensation  for  the  loss  of  property  pillaged  or  de- 
stroyed," the  President  would  be  disposed  to  bring  the  matter  before  the  benev- 
olent consideration  of  Congress.  For.  Rel.  1886,  158,  168,  Moore,  Dig., 
VI,  826,  834.     A  suitable  indemnity  was  paid. 

See,  also,  Mr.  Bavard,  Secv.  of  State,  to  Mr.  West,  British  Minister,  June 
1,  1885,  For.  Rel.  1885,  450,  456. 

519 


§  291]        RIGHTS   AND   DUTIES   OF   JURISDICTION 

§  291.   President  Harrison's  Attitude. 

It  remained  for  President  Harrison  to  declare  with  candor  in 
his  message  of  December  9,  1891,  that  in  the  absence  of  an  Act 
of  Congress  making  offenses  against  the  treaty  rights  of  foreigners 
domiciled  within  the  United  States  cognizable  in  the  Federal 
Courts : 

the  officers  of  the  State  charged  with  police  and  judicial  powers 
in  such  cases  must,  in  the  consideration  of  international  ques- 
tions growing  out  of  such  incidents,  be  regarded  in  such  cases 
as  Federal  agents  as  to  make  this  Government  answerable  for 
their  acts  in  cases  where  it  would  be  answerable  if  the  United 
States  had  used  its  constitutional  power  to  define  and  punish 
crimes  against  treaty  rights.^ 

In  the  case  which  inspired  this  utterance  (that  of  the  lynching  of 
certain  Italians  at  New  Orleans  in  1891),  Mr.  Blaine,  Secretary 
of  State,  ultimately  announced  to  the  Marquis  Imperiali,  the 
Charge  d' Affaires  of  Italy,  that  the  President  deemed  it  to  be 
"the  solemn  duty,  as  well  as  the  great  pleasure  of  the  National 
Government  to  pay  a  satisfactory  indemnity."  ^ 

In  the  cases  that  have  since  arisen  an  indemnity  has  commonly 
been  paid  by  the  United  States.  Payment  has  been  accompanied 
by  a  declaration  expressed  either  by  Congress  or  by  the  Depart- 
ment of  State  that  such  action  was  taken  out  of  humane  con- 
sideration and  without  reference  to  the  question  of  liability.^ 
It  is  not  understood,  however,  that  in  any  case  where  the  facts 
have  clearly  indicated  neglect  in  the  matter  of  prevention  or 
prosecution,  there  has  been  a  definite  denial  of  a  legal  duty  to 
respond  in  damages.*     Nor  has  the  suggestion  been  made  that  in 

1  For.  Rel.  1891,  vi,  Moore,  Dig.,  VI,  840. 

2  For.  Rel.,  1891,  728,  Moore,  Dig.,  VI,  840.  See,  also,  Mr.  Blaine,  Secy, 
of  State,  to  the  Marquis  Imperiali,  Royal  Italian  Charge  d'Affaires,  April 
14,  1891,  For.  Rel.  1891,  682,  685.  Concerning  this  case  generally  see  For. 
Rel.  1891,  658-728,  Moore,  Dig.,  VI,  837-841;  Clunet,  XVIII,  1147-1161; 
F.  Despagnet,  "  Les  Difficultes  Internationales  venant  de  la  Constitution  de 
certains  pays  ",  Rev.  Gen.,  II,  184 ;  also  City  of  New  Orleans  v.  Abbagnato, 
62  Fed.  240 ;  James  Bryce,  in  New  Revieiv,  IV,  385. 

^  See,  for  example,  Act  of  Nov.  14,  1913,  authorizing  payment  of  the  sum 
of  ."86000  to  the  Itahan  Government  as  full  indemnity  to  the  heirs  of  Angelo 
Albano,  an  Italian  subject  who  was  killed  by  an  armed  mob  at  Tampa,  Florida, 
Sept.  20,  1910.     38  Stat.  1229. 

*  In  the  case  of  Italians  at  Walsenburg,  Colorado,  in  1895,  there  was  little 
or  no  proof  that  the  local  authorities  had  failed  in  their  duty.  See  report 
of  the  Italian  Consul  at  Denver,  For.  Rel.  1895,  II,  944.  Nevertheless,  Mr. 
Olney,  Secretary  of  State,  invited  the  Italian  Ambassador  to  formulate  a  claim. 
Id.,  950.  In  the  case  of  Italians  at  Hahnville,  La.,  in  1896,  Mr.  Olney,  Secre- 
tary of  State,  and  similarly  President  Cleveland,  did  not  agree  with  the 
Italian  Ambassador  that  the  facts  indicated  a  denial  of  justice.     For.   Rel. 

520 


CLAIMS   AGAINST    THE    UNITED    STATES         [§  291 

such  a  case  local  remedies  should  have  been  exhausted  as  a  con- 
dition precedent  to  reasonable  interposition.  While  attention 
has  been  called  to  the  dilemma  of  the  Federal  Government  in 
the  absence  of  appropriate  legislation  permitting  Federal  prosecu- 
tion of  offenders,  that  circumstance  does  not  appear  to  have  been 
relied  upon  as  a  means  of  evading  national  responsibility.  In 
the  Italian  case  at  Irwin,  Mississippi,  in  1901,  the  Department  of 
State  took  pains  to  inform  the  Italian  Embassy  that  the  President 
had  recommended  to  Congress  not  only  the  tendering  of  an  in- 
demnity, but  also  the  enactment  of  legislation  "to  give  the  Federal 
Courts  original  jurisdiction  of  treaty  offenses  against  aliens."  ^ 

1896,  410,  and  Ixxvi.  With  respect  to  the  case  of  Itahans  at  Talhilah,  La., 
in  1899,  Mr.  Hay,  Secretary  of  State,  declared  to  the  Italian  Ambassador, 
June  12, 1900 :  "  It  having  been  shown  that  Italian  subjects  were  slain  by  said 
lynching  and  that  there  has  been  a  failure  on  the  part  of  the  only  competent 
authorities  to  indict  or  bring  the  guilty  parties  to  trial  in  any  form,  the  Presi- 
dent feels  that  a  case  has  been  established  that  should  be  submitted  to  the 
consideration  of  Congress,  with  a  view  to  the  relief  of  the  families  of  Italian 
subjects  who  lost  their  lives  by  lawless  violence,  which  will  accordingly  be 
done  on  the  reassembling  of  Congress  in  December  next."  For.  Rel.  1900, 
722.  See,  also.  President  McKinley,  Annual  Message,  Dec.  3,  1900,  id., 
xxii,  Moore,  Dig.,  VI,  847. 

In  the  case  of  Greeks  and  others  who  were  victims  of  mob  violence  at 
South  Omaha  in  1909,  the  Department  of  State  declared  that  an  investigation 
made  by  an  official  of  the  Department  of  Justice  revealed  evidence  tending 
strongly  to  rebut  conclusions  of  the  representative  of  the  Greek  Legation 
"to  the  effect  that  prior  to  the  beginning  of  the  riots  the  police  had  been 
warned  against  possible  violence  to  the  Greeks  and  that  while  the  rioting 
was  taking  place  the  authorities  did  not  take  all  proper  and  possible  steps  to 
suppress  them."  In  this  case  the  Department  was  not  ready  to  admit  legal 
liability  on  the  part  of  the  United  States  to  pay  an  indemnity.  In  view  of 
the  circumstance,  however,  that  Greek  subjects  were  driven  out  of  the  city, 
their  property  destroyed,  and  personal  injuries  inflicted  on  some  of  them,  the 
Department  was  disposed  to  recommend  that  an  appropriation  be  made 
by  Congress  in  satisfaction  of  the  claims.  Mr.  Lansing,  for  Mr.  Bryan, 
Secy,  of  State,  to  the  Greek  Legation,  Sept  2,  1914,  House  Doc.  No.  576, 
64  Cong.,  1  Sess.,  16-17. 

1  Mr.  Hill,  Acting  Secy,  of  State,  to  Signor  Mayor  des  Planches,  Italian 
Ambassador,  Jan,  2,  1902.  For.  Rel.  1901,  299.  This  communication  was 
in  response  to  a  severe  arraignment  of  the  United  States  by  the  Italian  Em- 
bassy in  which  it  was  stated  that  "In  this  condition  of  things  the  Govern- 
ment of  the  King  has  sent  me  express  instruction  to  enter  the  most  energetic 
protest  against  what  is,  all  at  once,  a  denial  of  justice,  a  flagrant  violation  of 
contractual  conventions,  and  a  grave  offense  to  every  human  and  civil  senti- 
ment. The  Federal  Government  itself  admitted  after  the  preceding  lynching 
that  in  this  respect  the  judiciary  organization  of  the  country  is  deficient, 
and  that  the  defect  calls  for  a  prompt  remedy,  since  it  is  thereby  placed  in  the 
irksome  position  of  being  unable  to  keep  faith  with  the  treaties  that  bear  its 
signature.  The  illustrious  President  recently  carried  off  by  a  tragic  death 
had  earnestly  recommended  in  one  of  his  messages  that  provisions  be  made 
therefor,  but  the  bills  introduced  in  both  Houses  of  Congress  at  the  sugges- 
tion of  the  President  did  not  come  to  the  test  of  a  vote.  Until  the  desired 
reform  shall  have  become  an  accomplished  fact  the  Government  of  the  King 
not  only  will  have  grounds  of  complaint  for  violation  of  the  treaties  to  its  in- 
jury, but  will  not  cease  to  denounce  the  systematic  impunity  enjoyed  by 
crime,  and  to  hold  the  Federal  Government  responsible  therefor."     Id.,  297. 

521 


§  292]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

§  292.   Local  Statutory  Liability. 

In  certain  States  of  the  T'nited  States  a  county  or  municipality 
is  made  liable  for  the  consequences  of  mob  violence  occurring 
therein.^  In  the  cases  of  Piazza  and  Speranza,  Italians  who  were 
lynched  by  mobs  in  Illinois  in  1914  and  1915,  respectively,  the 
criminal  prosecutions  proved  abortive.  Civil  suits  in  both  cases, 
instituted  in  the  United  States  District  Court  against  the  County 
(in  the  Piazza  case)  and  the  municipality  (in  the  Speranza  case) 
rendered  liable  by  local  statute  for  the  consequences  of  mob  vio- 
lence, resulted  in  verdicts  and  judgments  for  the  plaintiffs,  award- 
ing damages  in  favor  of  dependents  residing  in  Italy .^ 

(b) 

§  293.    Claims  against  Foreign  States. 

The  United  States  has  frequently  interposed  in  behalf  of  Ameri- 
can victims  of  mob  violence  in  foreign  States.  In  so  doing  it 
has  correctly  asserted  that  when  any  agency  of  a  territorial  sov- 
ereign either  wantonly  or  passively  fails  to  use  the  means  at  its 
disposal  to  prevent  violence  or  to  prosecute  the  perpetrators,  a 
denial  of  justice  is  apparent  and  national  responsibility  therefor 
established,  irrespective  of  the  relationship  of  such  sovereign  to 
the  delinquent  local  authorities.^  The  principle  that  national 
responsibility  should  be  measured  by  such  a  test  has  generally 

1  Concerning  the  statutory  liability  of  counties,  see  S.  Blair  Fisher  in  "  Cyc", 
XI,  501-502,  and  cases  there  cited.  Concerning;  the  statutory  liabihty  of 
municipal  corporations,  see  H.  H.  Ingersoll,  in  "Cyc",  XXVIII,  1295-1298, 
and  cases  there  cited.  See,  also,  E.  M.  Borchard,  Diplomatic  Protection, 
§92. 

2  Illinois  Criminal  Code,  Chap.  38,  Section  256w,  Hurd's  Rev.  Stat,  of  IIU- 
nois,  1917,  p.  1007,  declaring  that:  The  "surviving  spouse,  Uneal  heirs,  or 
adopted  children  or  any  such  other  person  or  persons  who,  before  the  loss  of 
life,  were  dependent  for  support  upon  any  other  person  who  shall  hereafter 
suffer  death  by  lynching  at  the  hands  of  a  mob,  in  any  coimty  or  city  of  this 
State,  may  recover  from  such  county  or  city  damages  for  injury  sustained  by 
reason  of  the  loss  of  life  of  such  person,  to  a  sum  not  e.xceeding  five  thoasand 
dollars."  Concerning  the  criminal  prosecutions  in  these  cases  see  Charles 
H.  Watson  in  Yale  Law  J.,  XXV,  561. 

3  Declared  Mr.  Fish,  Secy,  of  State,  in  a  communication  to  Mr.  Partridge, 
Minister  to  Brazil,  No.  141,  March  5,  1875:  "It  is  the  duty  of  Brazil  when 
she  receives  the  citizens  of  a  friendly  State,  to  protect  the  property  which  they 
carry  with  them  or  may  acquire  there.  If  persons  in  the  service  of  that 
Government  connive  at  or  instigate  a  riot,  for  the  purpose  of  depriving  a 
citizen  of  the  United  States  of  his  property,  the  Imperial  Government  must 
be  held  accountable  therefor."  MS.  Inst.  Brazil,  XVI,  455,  Moore,  Dig., 
VI,  815,  816.  See,  also,  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Gibbs,  Minister 
to  Peru,  No.  107,  Mav  28,  1878,  MS.  Inst.  Peru,  XVI,  362,  Moore,  Dig.,  VI, 
817;  Mr.  Blaine.  Secy,  of  State,  to  Mr.  Egan,  Minister  to  Chile,  Jan.  21, 
1892,  respecting  the  case  of  violence  directed  against  sailors  of  the  U.  S.  S. 
Baltimore,  Oct.  16,  1891,  For.  Rel.  1891,  307,  Moore,  Dig.,  VI,  857.    Con- 

522 


CLAIMS   AGAINST    FOREIGN   STATES  [§  293 

been  observed  by  arbitral  tribunals.^  In  cases  at  Harpoot  and 
Marash,  in  Asiatic  Turkey  in  1895,  the  United  States  was  able 
to  adduce  abundant  proof  that  the  destruction  of  American  mis- 
sionary property  was  due  to  the  complicity  and  participation  of 
local  Turkish  soldiery.^  It  has  rarely  been  suggested  that  in- 
dividual claimants  should  have  exhausted  any  judicial  remedies 
prior  to  interposition,  for  it  has  not  appeared  that  redress  was  ob- 
tainable through  any  domestic  channel.^ 

It  should  be  observed,  however,  that  in  1912,  the  Department 
of  State,  in  response  to  an  inquiry  from  the  American  Embassy 
at  Mexico  City  with  respect  to  possible  attacks  on  property  by 

cerning  this  case  generally,  see  For.  Rel.  1891,  vi,  and  194-313;    For.  Rel. 

1892,  xiii,  Moore,  Dig.,  VI,  854-864. 

See,  also.  Resolution  of  the  Institute  of  International  Law  of  Sept.  10, 
1900,  Annuaire,  XVIII,  254. 

1  Sir  E.  Thornton,  Umpire  in  the  Jeannotat  Case,  under  convention  between 
the  United  States  and  Mexico,  of  July  4,  1868,  Moore,  Arbitrations,  3673 ; 
same  Umpire,  in  the  Donoughho  Case,  under  same  convention,  id.,  3012, 
3014 ;  dictum  of  Sir  Henry  Strong,  Umpire  in  the  Gelbtrunk  Case  against 
Salvador,  For.  Rel.  1902,  877,  879;  dictum  of  Henry  Barge,  Umpire  in  the 
Underbill  Case  against  Venezuela,  Ralston's  Venezuelan  Arbitrations,  1903, 
49. 

No  different  test  is  asserted  in  the  Derbec  Case,  under  convention  between 
the  United  States  and  France  of  Jan.  15,  1880,  Moore,  Arbitrations,  3029. 
Compare  the  dictum  of  the  Commissioners  in  the  early  Case  of  Lagueruene, 
before  the  Commission  under  Act  of  Congress  of  March  3,  1849,  Moore,  Arbi- 
trations, 3027,  3028.  Concerning  the  claims  resulting  from  the  Panama 
Riot  of  April  15,  1856,  and  the  special  obligation  of  protection  assumed  by 
New  Granada  in  consequence  of  Art.  XXXV  of  its  treaty  with  the  United 
States  of  Dec.  12,  1846,  and  of  Art.  I  of  the  convention  of  Sept.  10,  1857,  see 
Moore,  Arbitrations,  II,  chap.  XXVIII,  1361-1420. 

2  For.  Rel.  1895,  II,  1255-1470,  concerning  condition  of  affairs  in  Asiatic 
Turkey,  especially.  Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President, 
Dec.  19,  1895,  id.,  1256-1260,  and  also  documents,  id.,  1342.  1345,  1356,  1357, 
1369,  1370,  1395,  1423,  1430,  1434,  1444,  1446-1448,  1455;  also  For.  Rel. 
1896,  xxviii,  880,  881,  882,  883,  892,  893,  894,  895,  897 ;  For.  Rel.  1901,  518, 
Moore,  Dig.,  VI,  865-868. 

Concerning  the  destruction  of  Anatolia  College,  at  Marsovan,  by  an  un- 
restrained mob,  in  1893,  see   President   Cleveland,  Annual  Message,  Dec.  4, 

1893,  For.  Rel.  1893,  x ;  Mr.  Wharton,  Acting  Secy,  of  State,  to  Mr.  Thomp- 
son, American  Minister,  March  1,  1893,  id.,  604.  Concerning  case  of  attack 
on  the  premises  of  Dr.  Christie,  at  Tarsus,  Aug.  4,  1895,  see  For.  Rel.  1895, 
II,  1271-1292;  see,  also,  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Angell,  Min- 
ister to  Turkey,  Aug.  23,  1897,  For.  Rel.  1897,  592. 

Concerning  riots  at  Lienchou,  Province  of  Canton,  1905,  and  resulting 
claims  of  the  United  States,  see  For.  Rel.  1906,  I,  308-324. 

3  In  response  to  such  a  suggestion  in  a  Peruvian  case,  Mr.  Evarts,  Secy, 
of  State,  declared  to  Mr.  Gibbs,  American  Minister  to  Peru:  "As  re- 
gards the  alleged  failure  of  Messrs.  Wexel  and  De  Gress  to  pursue  the  rioters 
in  court,  it  is  not  made  evident  that  they  could  have  indemnified  themselves 
for  their  losses  by  such  proceeding ;  it  is  not  made  clear,  indeed,  that  the  po- 
lice discovered  any  responsible  perpetrators  of  the  deeds  complained  of." 
No.  107,  May  28,  1878,  MS.  Inst.  Peru,  XVI,  362,  Moore.  Dig.,  VI,  817. 

See,  also,  opinion  of  Sir  E.  Thornton,  Umpire,  in  the  Donoughho  Case, 
under  convention  between  the  United  States  and  Mexico  of  July  4,  1868, 
Moore,  Arbitrations,  III,  3012,  3014. 

523 


§  293]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

mobs,  and  tlie  inability  of  local  authorities  to  render  protection, 
announced  that  it  could  not  lay  down  any  rules  other  than  those 
provided  by  international  law,  which,  it  was  declared,  would  doubt- 
less meet  the  situation.^ 

h 
Claims  Based  on  War 

(1) 
§  294.   In  General.     Local  Remedies. 

War  claims  are  those  which  arise  from  and  are  deemed  to  be 
chargeable  to  the  conduct  of  a  State  while  a  belligerent,  or  while 
engaged  in  hostilities  as  though  it  were  one.^  Such  claims  are  of 
great  variety.  They  may  be  founded  on  any  form  of  activity 
incidental  to  the  prosecution  of  war,  whether  on  sea  or  land,  and 
whether  attributable  to  the  military  or  civil  arm  of  the  govern- 
ment. Thus  they  may  spring  from  the  conduct  of  the  commander 
of  a  submarine  or  that  of  the  occupant  of  enemy  territory;  they 
may  grow  out  of  the  acts  of  an  army  in  the  field,  or  of  a  collector 
of  a  port.  Such  claims  may  have  an  enemy  as  well  as  neutral 
origin.  The  treaty  of  peace  terminating  the  conflict  may,  however, 
contain  a  waiver  of  such  claims,^  or  it  may  provide  that  one  party 
shall  itself  adjust  those  possessed  by  its  nationals  against  its  former 
enemy.'*    Again,  the  treaty  may  burden  one  party  with  respon- 

1  For.  Rel.  1912,  958,  where  attention  was  called  to  Moore,  Dig.,  VI,  809, 
and  following.  Prof.  Moore  there  makes  the  following  statement:  "The 
question  of  a  government's  liability  for  injuries  suffered  by  foreigners  within 
its  jurisdiction  has  on  various  occasions  been  discussed  and  determined  in 
cases  of  mob  violence.  Such  cases  sometimes  apparently  present  strong 
grounds  of  national  liability  because  of  the  popular  approval  of  the  mob's 
action,  and  the  consequent  immunity  of  the  actors  from  prosecution  and 
punishment.  The  rule,  however,  which  has  generally  been  maintained  in 
argument,  even  if  not  in  practice,  is  that  while  a  government  is  bound  to  em- 
ploy all  reasonable  means  to  prevent  such  disorders,  it  is  not  required  to  make 
indemnity  for  the  losses  that  may  result  from  them,  unless,  as  in  the  case  of 
Art.  XXXV  of  the  treaty  of  1846  with  New  Granada,  or  as  in  the  case  of  an 
attack  on  official  representatives,  there  is  a  special  obligation  of  protection." 

2  See,  in  this  connection,  E.  M.  Borchard,  Diplomatic  Protection,  §§  98- 
100. 

2  See,  for  example,  Sections  8  and  9  of  Annex  III,  following  Art.  244  of  treaty 
of  peace  with  Germany  of  June  28,  1919,  embracing  the  waiver  by  Germany 
of  certain  claims  against  the  Allied  and  Associated  Governments  with  respect 
to  German  vessels  detained,  employed,  damaged,  sunk  or  salved. 

"Local  remedies,  however,  for  the  adjustment  of  claims  growing  out  of 
war  are  seldom  provided,  as  their  settlement  is  generally  comprehended  in 
the  treaty  of  peace."  Department  of  State,  Claims  Circular  of  1919,  Sec- 
tion 8. 

^  See,  for  example,  Art.  VII  of  the  treatv  of  peace  between  the  United 
States  and  Spain,  of  Dec.  10,  1898,  Malloy's  Treaties,  II,  1692. 

524 


IN  GENERAL.     LOCAL  REMEDIES  [§  294 

sibility  for  Illegal  acts  attributable  to  It,  and  impose  a  duty 
upon  It  to  meet  claims  of  nationals  of  the  enemy  arising 
therefrom.^ 

Claims  of  neutral  origin  are  obviously  unaffected  by  the  terms 
of  a  treaty  of  peace.  Moreover,  they  may  be  based  upon  the 
theory  that  the  particular  act  of  a  belligerent  State  involving  the 
taking  or  Injury  of  property  was  not  internationally  illegal,  but 
merely  of  a  kind  such  as  to  require  as  a  condition  subsequent,  a 
duty  to  compensate  the  owner;  and  the  absence  of  adequate  ar- 
rangement to  establish  locally  such  an  obligation  and  to  satisfy  It, 
may  be  the  reason  for  interposition. 

The  preferring  of  a  war  claim  must  be  based  upon  the  prin- 
ciples applicable  to  Interposition  on  account  of  claims  of  other 
classes,  and  thus  involves  inquiry  whether  the  conduct  of  the 
belligerent  with  respect  to  the  claimant,  either  on  account  of 
the  nature  of  the  particular  act  complained  of,  or  by  reason  of 
neglect  of  any  concurrent  or  subsequent  obligation  to  make  com- 
pensation to  him,  violated  the  requirements  of  international  law; 
and  secondly,  whether  the  State  charged  with  wrongdoing  affords 
any  adequate  local  remedy  within  the  reach  of  the  claimant. 

It  is  perhaps  distinctive  of  war  claims  that  there  is  rarely  avail- 
able a  local  remedy  which  the  State  of  the  claimants  deems  to  be 
adequate.  It  must  be  acknowledged  that  domestic  tribunals  or 
commissions,  regardless  of  the  scope  of  their  powers,  are  likely 
to  be  incapable  of  judging  without  prejudice  of  the  propriety  of 
the  conduct  of  the  authorities  of  their  ovm  State.  In  cases  arising 
from  belligerent  operations  or  activities,  such  bodies  find  It  diffi- 
cult to  disapprove  of  conduct  believed  to  be  necessary  or  incidental 
to  the  successful  prosecution  of  a  war,  especiall}^  when  the  lawful- 
ness of  an  act  is  challenged  by  a  foreign  power.  For  that  reason, 
if  adjudications  are  to  be  responsive  to  the  requirements  of  justice, 
a  reference  to  neutral  judges  would  commonly  appear  to  be  essen- 
tial. It  may  be  noted  that  the  United  States  has  frequently  agreed 
both  as  complainant  and  respondent,  to  the  adjustment  of  war 
claims  by  arbitration  before  tribunals  possessed  of  a  neutral 
umpire. 

In  order  to  determine  generally  whether  a  particular  act  of  a 
belligerent  in  relation  to  an  alien  or  his  property  was  lawful  or 
unlawful,  reference  must  be  had  to  the  requirements  of  the  law 

1  See  obligation  imposed  upon  Germany,  by  Art.  231  of  the  treaty  of  peace 
of  June  28. 1910.  See,  also,  Arts.  232-247,  with  annexes,  embodying  the  repa- 
ration clauses  of  Part  VIII  of  the  treaty.     See  infra,  §  298. 

525 


i 


§  294]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

of  nations;  and  these  must  be  examined  partly  in  the  light  of 
the  position  taken  by  the  State  charged  with  wrongdoing,  and  as 
revealed  by  the  terms  of  general  conventions  to  which  it  may  be 
a  party,  such  as,  for  example,  those  emanating  from  the  Hague 
Peace  Conferences  of  1899  and  1907.  Such  is  believed  to  be  the 
mode  of  ascertaining  whether  neutral  property,  public  or  private, 
has  been  lawfully  taken  or  destroyed  under  any  of  the  numerous 
and  varying  conditions  confronting  a  belligerent  fighting  by  land 
and  sea,  and  in  territory  other  than  its  own,  and  whether  also  the 
act  of  taking  or  destruction,  even  though  not  unlawful,  gives  rise 
to  a  duty  to  make  reparation  to  the  owner.^ 

It  may  be  fairly  claimed  that  whenever  a  belligerent  violates 
a  principle  of  international  law  with  respect  to  a  State  which  is  not 
engaged  in  the  conflict,  by  reason  of  the  treatment  accorded  the 
persons  or  property  of  its  nationals,  the  rights  of  the  latter  in 
seeking  to  obtain  justice  are  as  broad  as  those  arising  from  claims 
of  non-belligerent  origin,  and  that  the  propriety  of  interposition 
is  not  altered  or  limited  by  any  special  rule  due  to  the  nature  of  the 
claim  or  the  grounds  on  which  it  may  be  opposed. 

(2) 

§  295.    Certain  Hazards  of  War. 

An  alien  residing  within  the  domain  of  a  belligerent  State  is 
said  to  accept,  like  the  nationals  thereof,  the  hazards  of  war,  and 
to  possess  no  greater  rights  than  they  to  demand  compensation 
from  the  territorial  sovereign.^  This  is  doubtless  true  so  long  as 
such  belligerent  respects  the  requirements  of  international  law. 
When,  however,  its  acts  are  heedless  of  those  requirements,  with 
respect  to  persons  and  property  in  places  under  its  control,  the 
rights  of  alien  victims  are  not,  as  in  analogous  cases,  measured  by 
the  treatment  accorded  the  nationals  of  the  belligerent.  It  is 
only  when  that  treatment  conforms  to  the  standard  which  the 
usages  and  agreements  of  enlightened  States  have  fixed,  that  it 
indicates  the  full  measure  of  the  obligation  involved.^ 

1  It  is  not  here  sought  to  discuss  the  propriety  of  various  forms  of  helligerent 
activities,  or  the  circumstances  when  they  impose  upon  the  actor  special  obU- 
gations  with  respect  to  the  owners  of  property.  These  matters  are  dealt  with 
under  the  appropriate  headings  in  connection  with  topics  dealing  with  the 
prosecution  of  war  on  land,  and  with  maritime  warfare. 

^  Little,  Commissioner  in  Castel  Case,  United  States  and  Venezuelan  Claims 
Commission,  Convention  of  Dec.  5, 1885,  Moore,  Arbitrations,  IV,  3710,  Moore, 
Dig..  VI.  893. 

3  See  reasoning  of  Lord  Palmerston  in  the  House  of  Commons,  June  4, 
1850,  concerning  adjustment  by  Great  Britain  of  a  claim  preferred  by  Austria 

526 


CERTAIN    HAZARDS    OF    WAR  [§  295 

Courts  of  arbitration  have  emphasized  the  broad  scope  of  the 
hazards  encountered  by  neutral  aliens  residing  in  or  having  prop- 
erty in  the  territory  of  a  belligerent,  and  which  sustained  injury  in 
the  course  of  hostilities.^  A  few  may  be  noted.  Houses  may 
catch  fire  from  buildings  destroyed  by  shells,^  or  may  be  de- 
liberately burned  when  affording  cover  to  the  enemy ;  ^  walls 
and  pavements  may  be  torn  up  in  the  course  of  a  siege,^  and  crops 
ruined  by  cavalry  passing  over  them  in  a  battle  or  while  approach- 
ing the  scene  of  conflict.^  In  numerous  other  ways  devastation 
may  be  the  natural  result  of  hostilities.'^  Such  occurrences  do 
not  necessarily  imply  that  international  law  has  been  violated  by 
the  territorial  sovereign,  or  that  the  neutral  owaiers  of  property  so 
injured  or  destroyed  are  entitled  to  compensation  from  it  on  ac- 
count of  their  losses. 

With  respect  to  persons  and  property  of  neutrals  within  terri- 
tory of  the  enemy  of  the  belligerent  whose  operations  result  in 
injury  or  destruction,  the  individual  claimants  find  themselves 
subject  to  the  familiar  rule  that  they  and  their  property  may  be 
fairly  regarded  as,  respectively,  enemy  persons  and  enemy  property 
by  the  State  whose  acts  were  productive  of  the  loss  sustained.' 

arising  from  the  plundering  of  a  brig  wrecked  on  the  Irish  coast,  Hansard 
Parliamentary  Debates,  CXI,  717-719,  Moore,  Dig.,  VI,  887. 

1  See  Upton  Case,  American- Venezuelan  Commission,  1903,  Ralston's  Re- 
port, 172 ;  Bembelista  Case,  Netherlands-Venezuelan  Commission,  1903,  id., 
900;   Volkmar  Case,  American- Venezuelan  Commission,  1903,  id.,  258. 

Declared  Mr.  Fish,  Secy,  of  State,  to  Mr.  Washburne,  Minister  to  France, 
April  28,  1871 :  "The  Court  of  Claims,  adopting  the  language  of  my  prede- 
cessor, Mr.  Seward,  has  decided  it  to  be  the  law  and  usage  of  nations  that  one 
who  takes  up  his  residence  in  a  foreign  place  and  there  suffers  an  injurj'  to  his 
property  by  reason  of  belligerent  acts  committed  against  that  place  by  an- 
other foreign  nation,  must  abide  the  chances  of  the  country  in  which  he  chooses 
to  reside ;  and  his  only  chance,  if  any,  is  against  the  government  of  that  coun- 
try, in  which  his  own  sovereign  will  not  interest  himself.  Such  has  been  the 
doctrine  and  practice  of  the  United  States  and  of  the  great  powers  of  Europe, 
and  this  Government,  therefore,  cannot  intervene  in  behalf  of  Mr.  Fougen, 
or  of  any  citizen  of  the  United  States,  under  the  same  circumstances."  For. 
Rel.  1871,  335,  Moore,  Dig.,  VI,  888. 

2  Donaldsonville  Cases,  French-American  Commission,  Convention  of 
Jan.  15,  1880,  Moore,  Arbitrations,  IV,  3689,  3697 ;  see,  also,  Bercier  Case,  be- 
fore same  Commission,  id.,  3706;  Cleworth  Case,  British-American  Claims 
Commission,  Convention  of  May  8,  1871,  id.,  3675. 

'  Jardel  Case,  French-American  Commission,  Convention  of  Jan.  15, 
1880,  Moore,  Arbitrations,  IV,  3699. 

*  Blumenkron  Case  before  Mexican-American  Commission,  Convention 
of  July  4,  1868,  Moore,  Arbitrations,  IV,  3669. 

I  *  Cole  Case,  Mexican-American  Claims  Commission,  Convention  of  July 
4,  1868,  Moore,  Arbitrations,  IV,  3670.  See,  also,  Hale's  Report  of  the  Work 
of  the  American-British  Claims  Commission,  treaty  of  May  8,  1871,  id.,  3678. 

^  Wilson  Case,  Spanish  Claims  Commission,  agreement  of  Feb.  12,  1871, 
Moore,  Arbitrations,  IV,  3674  ;  see,  also,  Giles  Case,  French-American  Commis- 
sion, Convention  of  Jan.  15,  1880,  id.,  3703. 

7  Mr.  Seward,  Secy,  of  State,  to  Count  Wydenbruck,  Austrian  Minister, 

527 


§  295]         RIGHTS   AND    DUTIES   OF  JURISDICTION 

It  may  here  be  noted  that  the  courts  of  the  United  States  have 
appHed  the  same  rule  in  the  treatment  of  the  claims  of  American 
citizens  having  property  in  the  limits  of  the  Confederate  States 
during  the  Civil  War/  and  in  Cuba  during  the  war  between  the 
United  States  and  Spain  in  1898.^ 

It  is  believed  that,  in  general,  the  equities  of  the  neutral  claimant 
whose  property  suffers  injury  or  destruction  in  the  course  of  mili- 
tary operations,  through  the  acts  of  the  territorial  sovereign,  are 
likely  to  be  stronger  than  where  complaint  is  made  of  the  acts  of 
the  enemy  of  that  sovereign  and  incidental  to  attacks  upon  its  terri- 
tory. In  the  former  situation,  the  circumstances  of  the  particular 
case  may  be  such  as  to  establish  a  just  demand  for  compensation 
even  when  the  act  of  injury  or  destruction  is  in  no  sense  unlawful. 


(3) 

:  So 
Co] 

(a) 


The  Relation  of  the  Belligerent  Sovereign  to  Certain  Acts  Giving 

Rise  to  Complaint 


§  296.   Acts  of  Soldiers. 

While  illegal  acts,  wanton  or  otherwise,  which  are  attributable 

to  a  belligerent  may  justify  a  demand  for  redress  in  behalf  of  neu- 

Nov.  16,  1865,  MS.  Notes  to  Austrian  Legation,  VII,  193,  Moore,  Dig.,  VI, 
885 ;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Washburne,  Minister  to  France,  No. 
272,  April  28,  1871,  For.  Rel.  1871,  335,  Moore,  Dig.,  VI,  888;  Same  to  Sir  E. 
Thornton,  British  Minister  at  Washington,  May  16,  1873,  MS.  Notes  to 
Great  Britain,  XVI,  101,  Moore,  Dig.,  VI,  890. 

"Foreign  Offices  and  municipal  and  international  courts  have  frequently 
laid  down  the  rule  that  neutral  property  permanently  situated  in  enemy 
territory,  or  property  of  neutrals  who  voluntarily  enter  or  continue  to  reside 
in  belligerent  territory  assumes  the  risks  of  injury  incident  to  war."  E.  M. 
Borchard,  Diplomatic  Protection,  §  101.  See,  also,  Gallego,  Messa  &  Co.  v. 
United  States,  43  Ct.  CI.  444. 

See,  also.  Brief  of  Messrs.  Strobel  and  Cruz,  in  behalf  of  the  Respondent 
in  Case  of  C.  D.  Blodgett,  No.  14,  United  States  and  Chilean  Claims  Com- 
mission, under  convention  of  May  24,  1897,  reviving  convention  of  Aug.  7, 
1892;  award  in  Matter  of  William  Hardman,  Claim  No.  2,  June  18,  1913, 
American  and  British  Pecuniary  Claims  Arbitration,  convention  of  1910, 
Am.  J.,  VII,  879,  881,  where  it  was  declared  that  "notwithstanding  the 
principle  generally  recognized  in  international  law  that  necessary  acts  of 
war  do  not  imply  the  belligerent's  legal  obligation  to  compensate,  there  is, 
nevertheless,  a  certain  humanitary  conduct  generally  followed  by  nations  to 
compensate  the  private  war  losses  as  a  matter  purely  of  grace  and  favor, 
when  in  their  own  judgment  they  feel  able  to  do  so,  and  when  the  sufferer 
appears  to  be  specially  worthy  of  interest." 

See  Schoenrich's  Report  of  Nicaraguan  Mixed  Claims  Commission,  under 
Nicaraguan  laws  of  1911,  p.  61,  announcing  as  Rule  1  adopted  by  the  Com- 
mission that  "The  Government  is  not  responsible  for  damages  suffered  during 
a  battle,  or  as  a  direct  consequence  of  military  operations." 

1  See,  for  example,  Mrs.  Alexander's  Cotton,  2  Wall.  404,  419 ;  Brandon 
V.  United  States,  46  Ct.  CI.  559. 

2  Juragua  Iron  Co.,  Ltd.  v.  United  States,  212  U.  S.  297,  307;  Herrera  v. 
United  States,  222  U.  S.  558,  569. 

528 


ACTS  OF  SOLDIERS  [§  296 

tral  victims,  difficulty  may  arise  in  determining  whether  the  rela- 
tion of  the  actors  to  the  belligerent  was  such  as  to  fasten  respon- 
sibility upon  it.  Courts  of  arbitration  have  frequently  declared 
that  the  liability  of  a  belligerent  on  account  of  the  conduct  of  its 
soldiers  is  dependent  upon  whether  their  acts  were  committed 
in  the  presence  or  with  the  consent  of  officers/  as  otherwise,  ac- 
cording to  Mr.  Ralston,  "no  such  relation  of  agency  existed  as 
would  make  a  government  liable."  ^  Thus,  in  certain  adjudicated 
cases  the  fact  that  soldiers  were  unaccompanied  by  officers,^  or 
that  the  latter  although  aware  of  the  commission  of  unlawful  acts 
by  their  subordinates,  were  unable  to  enforce  discipline,  served 
to  shield  the  belligerent  sovereign  from  responsibility.'* 

Mr.  Bayard,  Secretary  of  State,  declared  in  1885,  that  the  mere 
fact  that  an  act  might  be  committed  without  orders  from  superiors 
in  command  was  indecisive  of  the  question  of  liability.^    He  stated 

1  See,  for  example,  Webster  Case,  Mexican-American  Commission,  Conven- 
tion of  July  4,  1868,  Moore,  Arbitrations,  III,  3004;  Dunbar  &  Belknap  Case 
before  same  Commission,  id.,  2998 ;  Standish  Case,  before  same  Commission, 
id.,  3004;  statement  by  Mr.  Moore,  as  to  various  cases  before  same  Com- 
mission, id.,  2996-2997;  Jeannaud  Case,  French-American  Commission, 
Convention  of  Jan.  15,  1880,  id.,  3000 ;  Terry  &  Angus  Case,  Mexican  Claims 
Commission,  Act  of  Congress,  March  3,  1849,  id.,  2993  ;  Roberts  Case,  Ameri- 
can-Venezuelan Commission,  1903,  Ralston's  Report,  142.  See,  also.  Claim 
of  Bernard  Campbell  against  Haiti,  For.  Rel.  1895,  II,  811-813,  Moore,  Dig., 
VI,  764 ;  case  of  ill  treatment  of  D.  A.  Backer  by  Haitian  soldiers.  For.  Rel. 
1907,  II,  742-744  ;  Brief  of  Messrs.  Strobel  and  Cruz,  in  behalf  of  Respondent, 
in  Case  of  C.  D.  Blodgett.  No.  14,  United  States  and  Chilean  Claims  Com- 
mission under  Convention  of  May  24,  1897,  p.  12  and  following. 

2  Ralston's  Arbitral  Procedure,  284. 

^  Declares  Mr.  Moore:  "In  numerous  cases  before  the  Commission  under 
the  Convention  between  the  United  States  and  Mexico  of  July  4,  1868,  it  was 
held  by  Sir  Edward  Thornton,  as  umpire,  that  the  government  was  not  liable  for 
the  acts  of  individual  soldiers  or  of  bodies  of  stragglers  or  marauding  soldiers 
not  under  the  command  of  an  officer."  Moore,  Arbitrations,  III,  2996- 
2997.  Among  the  instances  cited  are  the  Trippler  Case,  Moore,  Arbitrations, 
2997,  and  the  Culberson  Case,  id.,  2997.  See,  also,  Buentello  Case  before 
same  Commission,  id.,  3670  ;  Michel  Case  before  same  Commission,  id.,  3670 ; 
Vesseron  Case  before  same  Commission,  id.,  2975;  Foster  Case,  Spanish 
Claims  Commission,  agreement  of  Feb.  12,  1871 ;  Henriquez  Case,  Nether- 
lands-Venezuelan Commission,  1903,  Ralston's  Report,  910.  In  Ralston, 
Arbitral  Procedure,  286,  are  cited  the  Edgerton  Case,  Reclamaciones  Pre- 
sentadas  al  Tribunal  Anglo-Chileno,  I,  126 ;  also  Bacigalupi  Case  before 
Chilean-American  Claims  Commission  of  1897,  No.  42. 

*  Antrey  Case,  Mexican-American  Commission,  Convention  of  inly  4,  1868, 
Moore,  Arbitrations,  IV,  3672 ;  see,  also,  Weil  Case  before  same  Commission, 
id.,  3671 ;   Dresch  Case,  before  same  Commission,  id.,  3669. 

5  Commimication  to  Mr.  Buck,  Minister  to  Peru,  No.  33,  Oct.  27,  1885,  For. 
Rel.  1885,  625,  Moore,  Dig.,  VI,  758 ;  Same  to  Same,  Aug.  24,  1886,  MS.  Inst. 
Peru,  XVII,  231,  Moore,  Dig.,  VI,  758. 

Compare  Mr.  Magoon,  law  officer,  division  of  insular  affairs,  Feb.  6,  1901, 
Magoon's  Reports,  338,  Moore,  Dig.,  VI,  758;  also  opinion  of  Gen.  Davis, 
Judge-Advocate-General,  U.  S.  A.,  and  comments  thereon  by  the  French 
Ambas.sador  and  the  Solicitor  to  the  Department  of  State,  concerning  claim  of 
Messrs.  Laurent  &  Lambert  v.  The  United  States,  for  losses  sustained  during 
the  Spanish-American  War,  For.  Rel.  1907,  I,  393-398. 

529 


§  296]        RIGHTS   AND   DUTIES   OF   JURISDICTION 

that  a  government  might  be  responsible  for  the  misconduct  of 
soldiers  in  the  field,  or  when  acting,  either  constructively  or  ac- 
tually under  its  authority,  if  their  acts,  although  forbidden  by  the 
goverment,  were  in  contravention  of  the  rules  of  civilized  warfare. 
If  by  this  statement  he  appeared  to  enlarge  the  acknowledged 
scope  of  national  responsibility,  he  limited  it  by  the  declaration 
that  a  State  was  not  responsible  for  the  "collateral  miscon- 
duct of  individual  soldiers  dictated  by  private  malice."  ^  It  may 
be  doubted  whether  in  practice  such  a  limitation  could  be  generally 
relied  upon  without  qualification. 

The  circumstance  that  officers,  though  aware  of  the  commission 
of  unlawful  acts  by  enlisted  men,  were  powerless  to  enforce  dis- 
cipline, has  at  times  been  regarded  as  affording  an  excuse  for  the 
excesses  of  their  troops.^ 

Article  III  of  the  Hague  Convention  of  1907,  concerning  the 
Laws  and  Customs  of  War  on  Land,  after  announcing  that  a 
belligerent  party  violating  the  provisions  of  the  Regulations  an- 
nexed to  the  Convention  should,  if  the  case  so  demanded,  be  liable 
to  pay  compensation,  declared  that  such  a  belligerent  should  be 
"responsible  for  all  acts  committed  by  persons  forming  part  of 
its  armed  forces."  ^  Tested  by  this  provision,  the  commission  of 
any  acts  prohibited  by  the  Regulations,  such,  for  example,  as  the 
pillaging  of  a  place  taken  by  assault,^  would  establish  the  liability 
of  the  belligerent,  and  that  irrespective  of  the  inability  of  an  officer 
to  enforce  discipline,  or  of  his  ignorance  or  prohibition  of  the  acts 
committed.^  Although  such  be  deemed  to  be  the  extent  of  the 
obligation  imposed  upon  the  United  States  or  any  other  power 
as  a  belligerent,  it  may  be  doubted  whether  national  responsibility 
for  the  wrongful  acts  committed  by  soldiers  in  time   of   peace 

1  In  this  connection  see,  also,  Case  of  the  Castelains,  French-American 
Claims  Commission,  Convention  of  June  15,  1880,  Moore,  Arbitrations, 
III,  2999. 

2  Thornton,  Umpire  in  Vesseron  Case,  Mexican-American  Commission,  Con- 
vention of  July  4,  1868,  Moore,  Arbitrations,  III,  2975 ;  and  in  Antrey  Case, 
before  same  Commission,  id.,  IV,  3672. 

'  Malloy's  Treaties,  II,  2278;  Scott,  Hague  Peace  Conferences,  II,  371. 

'  Art.  XXVIII. 

^  Higgins,  Hague  Peace  Conferences,  260 ;  Holland,  Laws  of  War  on  Land, 
19.  See,  also,  extract  from  Halleck,  Int.  Law,  San  Francisco,  1861,  Sec.  22, 
p.  442,  quoted  in  Moore,  Dig.,  VI,  918.  The  same  passage  is  contained  in 
Sir  G.  Sherston  Baker's  3  ed.  of  same  work,  London,  1908,  II,  36-37. 

The  decision,  in  some  of  the  earlier  cases,  such  as  that  of  Sir  Edward  Thorn- 
ton in  the  Cooper  Case,  Mexican-American  Commission,  under  Convention 
of  July  4,  1868,  Moore,  Arbitrations,  IV,  4039,  or  of  Commissioner  Wadsworth, 
in  the  Friery  Case,  before  same  Commission,  id.,  4036,  where  no  indemnity 
was  allowed  for  pillaging  by  soldiers,  was  doubtless  due  to  the  belief  that  at 
that  time,  such  acts  were  to  be  counted  among  the  ordinary  hazards  of  war 
assumed  by  aliens  resident  in  belligerent  territory. 

530 


THE   GENERAL  THEORY  OF  REPARATION         [§  298 

would  be  measured  by  the  same  test,^  It  is  probable  that  the 
obligation  to  make  reparation  for  acts  committed  in  such  a  season 
would  be  regarded  as  dependent  upon  the  circumstance  that  the 
soldier  was,  at  the  time  of  his  misconduct,  engaged  in  the  perform- 
ance of  his  duties,  and  also,  that  his  superior  officers  failed  to 
use  the  means  at  their  disposal  to  prevent  what  occurred  or  to 
discipline  the  offender. 

(b) 

§  297.   Acts  of  Private  Individuals  and  Bandits. 

A  consequence  of  a  state  of  war,  and  especially  of  the  operations 
of  belligerent  forces,  is  the  opportunity  afforded  individuals  and 
bands  of  marauders  unattached  to  any  public  service  to  perpetrate 
lawless  acts  upon  defenseless  persons.^  For  such  acts  the  re- 
sponsibility of  a  belligerent  power  would  appear  to  depend  upon 
its  failure  to  make  diligent  use  of  the  means  at  its  disposal  to  deter 
misconduct  or  to  punish  offenders.  Unless  neglectful  in  this  re- 
gard, it  would  be  difficult  to  establish  a  legal  obligation  to  make 
redress;  for  the  actors  could  not  be  regarded  as  in  any  sense 
agents  of  the  belligerent  within  whose  domain  they  operated. 
While  a  belligerent  must  on  principle  exercise  the  same  measure 
of  diligence  within  any  area  under  its  control  that  is  required,  in 
times  of  peace,  of  a  territorial  sovereign,  the  engrossing  and  bur- 
densome problem  which  oftentimes  engages  a  military  commander 
during  the  period  when  the  bandit  does  his  work  doubtless  has  a 
bearing  on  the  reasonableness  of  the  steps  taken  to  prevent  or 
suppress. 

(4) 
War  Claims  against  Germany  under  the  Treaty  of  Versailles 

(a) 
§  298.    The  General  Theory  of  Reparation. 

By  the  terms  of  the  treaty  of  peace  of  June  28,  1919,  Germany 

1  Mr.  Hay,  Secy,  of  State,  to  Mr.  Hunter,  Minister  to  Honduras,  March  20, 
1900,  concerning  the  Case  of  Frank  Pears,  For.  Rel.  1900,  685-689,  also  id., 
674-702,  Moore,  Dig.,  VI,  762-764.  See,  also,  claim  of  Bernard  Campbell 
V.  Haiti,  For.  Rel.  1895,  II,  811-813,  id.,  1898,  397-398,  Moore,  Dig.,  VI,  764. 
Compare  Case  of  Lewis  L.  Etzel,  For.  Rel.  1904,  168-176,  Moore,  Dig.,  VI,  765. 

See,  also,  case  of  firing  by  Dominican  officials  in  1893  upon  the  schooner 
Henry  Crosby,  by  mistake.  For.  Rel.  1895,  I,  215-234,  especially  Mr.  Uhl, 
Acting  Secy,  of  State,  to  Messrs.  Goodrich,  Deady  &  Goodrich,  April  10, 
1894,  id.,  229,  Moore,  Dig.,  VI,  760;  also  case  of  assault  on  American  seamen 
in  the  course  of  a  street  brawl,  at  Santa  Catharina,  in  1894,  For.  Rel.  1895,  I, 
52-59,  Moore,  Dig.,  VI,  760. 

2  Buentello  Case,  Mexican-American  Commission,  Convention  of  July  4, 
1868,  Moore,  Arbitrations,  IV,  3670. 

531 


§  298]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

accepted  the  responsibility  of  herself  and  her  allies  for  causing  all 
the  loss  and  damage  to  which  the  Allied  and  Associated  Govern- 
ments and  their  nationals  had  been  subjected  as  a  consequence 
of  the  war  imposed  upon  them  by  the  aggression  of  Germany  and 
her  allies.^  That  State  was  thus  obliged  incidentally  to  under- 
take to  make  compensation  for  all  damage  done  to  the  civilian 
population  of  the  Allied  and  Associated  Powers  and  to  their 
property  during  the  period  of  the  belligerency  of  each  as  an  Allied 
or  Associated  Power  against  Germany  by  such  aggression  by  land, 
by  sea  and  from  the  air,  and  in  general  all  damage  as  defined  in  a 
particular  Annex  of  the  treaty."  The  amount  of  the  damage  was 
to  be  determined  by  an  Inter-Allied  Commission  to  be  called  the 

1  Art.  251. 

2  Art.  2.32.  It  was  declared  in  Annex  I  (following  Art.  244)  that  compen- 
sation might  be  claimed  from  Germany  under  Art.  232  in  respect  of  the  total 
damage  under  the  following  categories : 

"  (1)  Damage  to  injured  persons  and  to  surviving  dependents  by  personal 
injury  to  or  death  of  civilians  caused  by  acts  of  war,  including  bombardments 
or  other  attacks  on  land,  on  sea,  or  from  the  air,  and  all  the  direct  consequences 
thereof,  and  of  all  operations  of  war  by  the  two  groups  of  belligerents  wherever 
arising. 

"  (2)  Damage  caused  by  Germany  or  her  allies  to  civilian  victims  of  acts 
of  crueltj',  violence  or  maltreatment  (including  injuries  to  life  or  health  as 
a  consequence  of  imprisonment,  deportation,  internment  or  evacuation,  or 
exposure  at  sea  or  of  being  forced  to  labour),  wherever  arising,  and  to  the  sur- 
viving dependents  of  such  victims. 

"  (3)  Damage  caused  by  Germanv  or  her  allies  in  their  own  territory  or  in 
occupied  or  invaded  territory  to  civilian  victims  of  all  acts  injurious  to  health 
or  capacity  to  work,  or  to  honour,  as  well  as  to  the  surviving  dependents  of  such 
victims. 

"  (4)  Damage  caused  by  any  kind  of  maltreatment  of  prisoners  of  war. 

"  (5)  As  damage  caused  to  the  peoples  of  the  Allied  and  Associated  Powers, 
all  pensions  and  compensation  in  the  nature  of  pensions  to  naval  and  military 
victims  of  war  (including  members  of  the  air  force),  whether  mutilated, 
wounded,  sick  or  invalided,  and  to  the  dependents  of  such  victims,  the  amount 
due  to  the  Allied  and  Associated  Governments  being  calculated  for  each  of 
them  as  being  the  capitalised  cost  of  such  pensions  and  compensation  at  the 
date  of  the  coming  into  force  of  the  present  Treaty  on  the  basis  of  the  scales 
in  force  in  France  at  such  date. 

"  (6)  The  cost  of  assistance  by  the  Governments  of  the  Allied  and  As- 
sociated Powers  to  prisoners  of  war  and  to  their  families  and  dependents. 

"  (7)  Allowances  by  the  Governments  of  the  Allied  and  Associated  Powers 
to  the  families  and  dependents  of  mobilised  persons  or  persons  serving  with 
the  forces,  the  amount  due  to  them  for  each  calendar  year  in  which  hostilities 
occurred  being  calculated  for  each  Government  on  the  basis  of  the  average 
scale  for  such  payments  in  force  in  France  during  that  year. 

"  (8)  Damage  caused  to  civilians  by  being  forced  by  Germany  or  her  allies 
to  labour  without  just  remuneration. 

"  (9)  Damage  in  respect  of  all  property  wherever  situated  belonging  to  any 
of  the  Allied  or  Associated  States  or  their  nationals,  with  the  exception  of 
naval  and  miUtary  works  or  materials,  which  has  been  carried  off,  seized, 
injured  or  destroyed  by  the  acts  of  Germany  or  her  allies  on  land,  on  sea  or 
from  the  air,  or  damage  directly  in  consequence  of  hostilities  or  of  any  opera- 
tions of  war. 

"  (10)  Damage  in  the  form  of  levies,  fines  and  other  similar  exactions  im- 
posed by  Germany  or  her  allies  upon  the  civilian  population." 

532 


THE  GEKPERAL  THEORY  OF  REPARATION        [§  298 

Reparation  Commission,  for  the  constitution  and  powers  of  which 
elaborate  provision  was  made.^  The  function  of  that  body  (which 
was  not  to  be  dissolved  until  all  the  amounts  due  from  Germany 
and  her  allies,  under  the  treaty  or  the  decisions  of  the  Commission, 
should  have  been  discharged,  and  all  sums  received,  or  their 
equivalents,  should  have  been  distributed  to  the  Powers  interested) 
was  not  only  to  determine  the  amount  of  damage  chargeable  to 
Germany,  but  also  to  fix,  according  to  the  resources  and  capacity 
of  that  State,  the  time  and  form  of  payment.^  It  was  recognized 
that  the  resources  of  Germany  were  not  adequate,  after  taking 
into  account  permanent  diminutions  which  would  result  from  cer- 
tain provisions  of  the  treaty,  to  furnish  complete  reparation  for 
the  loss  and  damage  for  which  that  State  was  burdened  with 
responsibility.^  It  was  perceived  that  complete  satisfaction  of 
the  obligation  would  necessarily  consume  much  time,  and  require 
a  degree  of  flexibility  of  treatment  of  the  obligor  which  could 
best  be  applied  through  the  instrumentality  of  the  Commission. 
Upon  that  body  were,  therefore,  conferred  vast  discretionary 
powers.  It  was  declared  also  that  the  insufficiency  of  the  resources 
of  German  territory  rendered  it  imperative  that  the  German  Gov- 
ernment should  be  called  upon  to  exercise  its  functions  to  place 
within  reach  of  the  Allied  and  Associated  Powers  assets  of  various 
kinds  outside  of  its  domain  and  which  that  Government  might 
assert  the  right  to  control  and  utilize  for  its  own  benefit.^ 

In  establishing  a  plan  of  compensation  for  losses,  it  was  insisted 
that  Germany  should  make  restitution  of  tangible  things  which 
had  been  seized  when  it  was  possible  to  identify  them  in  territory 
belonging  to  Germany  or  her  allies,  and  that  without  allowing 

*  Art.  233.  The  provisions  for  the  Reparation  Commission  referred  to 
therein  were  set  forth  in  Annex  II  (between  Arts.  244  and  245).  It  may  be 
noted  that  according  to  Section  10  of  this  Annex  the  Commission  is  to  consider 
the  claims  and  to  give  to  the  German  Government  a  just  opportunity  to  be 
heard,  but  not  to  take  any  part  whatever  in  the  decision  of  the  Commission. 
A  similar  opportunity  is  to  be  afforded  the  allies  of  Germany,  when  the  Com- 
mission considers  that  their  interests  are  in  question. 

Paragraph  11  of  the  Annex  declares  that  the  Commission  shall  not  be  bound 
by  any  particular  code  or  rules  of  law  or  by  any  particular  rule  of  evidence  or 
of  procedure,  but  shall  be  guided  by  justice,  equity  and  good  faith.  It  is  said 
that  its  decisions  must  follow  the  same  principles  and  rules  in  all  cases  where 
they  are  applicable.  It  is,  moreover,  to  establish  rules  relating  to  methods  of 
proof  of  claims.  It  is  empowered  to  act  on  any  trustworthy  modes  of  com- 
putation. 

2  Arts.  233  and  234.  ^  Art.  232. 

*  See  Reply  of  the  Allied  and  Associated  Powers  to  the  Observations  of  the 
German  Delegation  on  the  Conditions  of  Peace  (accompanying  letter  of  M. 
Clemenceau,  President  of  the  Peace  Conference,  to  Count  Brockdorff-Rantzau, 
President  of  the  German  Delegation,  June  16,  1919),  Misc.  No.  4,  1919  [Cmd. 
258],  pp.  32-36,  47-49. 

533 


§  298]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

credit  for  so  doing  on  account  of  the  general  reparation  due.^ 
This  principle  operating  as  a  check  upon  credits  otherwise  to  be 
claimed  was  given  numerous  specific  applications.  These  ap- 
peared to  lack  uniformity,  by  reason  of  the  variety  of  the  modes 
by  which  reparation  was  to  be  made.^ 

In  fixing  broadly  the  methods  by  which'  reparation  should  be 
effected  and  a\-ailable  assets  utilized  to  that  end,  the  Allied  and 
Associated  Powers  compelled  Germany  to  agree  to  pursue  pri- 
marily the  following  courses :  to  pay  at  an  early  date,  in  gold  (or 
in  such  other  manner  as  the  Reparation  Commission  might  de- 
termine) a  specified  sum,^  to  be  followed  from  time  to  time  by 
other  payments,  with  a  view  to  satisfying  the  entire  fiscal  obliga- 
tion within  thirty  years  from  ^lay  1,  1921  ;  '^  as  a  measure  of  par- 
tial reparation,  to  make  direct  application  of  her  economic  re- 
sources to  replace  merchant  shipping  and  fishing  boats  lost  or 

^  Thus  according  to  Art.  238,  Germany  was  obliged  to  effect  "restitution 
in  cash  of  cash  taken  away,  seized  or  sequestrated,  and  also  restitution  of 
animals,  objects  of  every  nature  and  securities  taken  away,  seized  or  seques- 
trated, in  the  cases  in  which  it  proves  possible  to  identify  them  in  territory 
belonging  to  Germany  or  her  allies."  The  procedure  for  so  doing  was  to  be 
laid  down  by  the  Reparation  Commission.     See,  also,  Art.  243. 

-  Art.  243  announced  certain  credits  to  be  allowed  to  Germany  in  respect 
of  her  reparation  obligations. 

The  terms  on  which  the  numerous  and  varied  transfers  of  property  as  such 
were  to  be  made,  commonly  indicated  whether  credit  was  to  result  on  account 
of  reparation.  Cessions  of  territory  do  not  appear  generally  to  have  been  re- 
garded as  furnishing  a  basis  of  credit. 

See,  in  this  connection,  J.  R.  Clark,  Jr.,  "Data  on  German  Peace  Treaty", 
presented  to  the  Committee  on  Foreign  Relations,  United  States  Senate,  66 
Cong.,  1  Sess.,  in  which  that  author  has  pointed  out  the  design  as  to  credit, 
with  respect  to  each  relevant  Article  of  the  treaty. 

^  Art.  235.  It  should  be  observed  that  out  of  such  sum  the  expenses  of 
the  armies  of  occupation  subsequent  to  the  Armistice  of  November  11,  1918, 
were  first  to  be  met.  It  was  provided  also  that  such  supplies  of  food  and  raw 
material  as  might  be  judged  by  the  Governments  of  the  Principal  Allied  and 
Associated  Powers  to  be  essential  to  enable  Germany  to  meet  her  obligations 
for  reparation  might  also,  with  the  approval  of  those  Governments,  be  paid 
out  of  the  same  sum.  The  balance  was  to  be  reckoned  towards  liquidation  of 
the  amounts  due  for  reparation.  In  the  same  Article  it  was  agreed  that 
Germany  should  deposit  further  bonds  as  prescribed  in  paragraph  12(c)  of 
Annex  II  of  Part  VIII  of  the  treaty. 

^  Art.  233.  It  was  here  announced  that  the  findings  of  the  Commission 
as  to  the  amount  of  damage  should  be  notified  to  the  German  Government  on 
or  before  ]VIay  1,  1921,  as  representing  the  extent  of  that  Government's  obUga- 
tions. 

Agreement  was  made  in  the  same  Article  for  the  issuance  of  bonds  by  Ger- 
many to  cover  by  way  of  guarantee  and  acknowledgment  such  part  of  its 
debt  due  on  account  of  proved  claims,  as  might  not  be  paid  in  gold,  or  in 
ships,  securities  and  commodities,  or  othen\'ise.  See  paragraph  12  of  Annex  II, 
Part  VIII.  This  Annex  contained  elaborate  provision  for  the  plan  by  which 
Germany  should,  from  time  to  time,  under  the  direction  of  the  Reparation 
Commission,  issue  further  bonds  by  way  of  acknowledgment  and  security. 

See  Art.  237  with  reference  to  the  division  by  the  Allied  and  Associated 
Governments  of  successive  installments  of  moneys  paid  by  Germany. 

534 


THE   GENERAL  THEORY  OF  REPARATION        [§  298 

damaged  through  the  war,^  to  make  physical  restoration  of  in- 
vaded areas,^  to  furnish  coal  and  derivatives  of  coal/  to  deliver, 
if  required,  dyestuffs  and  chemical  drugs ;  ^  to  possess  itself,  upon 
demand  of  the  Reparation  Commission  within  a  fixed  time,  of 
rights  and  interests  of  German  nationals  in  public  utility  under- 
takings or  concessions  operating  in  the  territories  of  specified 
countries,  and  transfer  the  same,  if  acquired,  to  the  Reparation 
Commission ;  ■'  to  deliver  sums  of  gold  deposited  in  Germany  by 
Turkish  authorities  for  purposes  defined,  embracing  any  title  of 
Germany  therein,  and  to  transfer  any  sums  in  gold  transferred  to 
the  German  Government  as  a  pledge  or  collateral  security  for 
loans  to  the  Austro-Hungarian  Government ;  ^  to  transfer  any 
claims  which  Germany  might  have  to  certain  payments  or  re- 
payments by  the  Governments  of  Austria,  Hungary,  Bulgaria  or 
Turkey ;  ^  and  to  acquiesce  generally  in  the  utilization  of  the 

1  Art.  236,  and  also  Annex  IH  of  Part  VIII.  In  this  Annex  Germany 
recognized  the  right  of  the  AlUed  and  Associated  Powers  to  the  replacement, 
ton  for  ton  (gross  tonnage)  and  class  for  class,  of  all  merchant  ships  and  fishing 
boats  lost  or  damaged  owing  to  the  war.  The  German  Government  under- 
took "on  behalf  of  themselves  and  so  as  to  bind  all  other  persons  interested", 
to  cede  to  the  Allied  and  Associated  Governments  the  property  in  all  German 
merchant  ships  of  1600  tons  gross  and  upwards,  as  reckoned  in  a  specified 
manner  of  division.  Grermany  undertook  also,  among  other  things,  to  cause 
to  be  built  in  German  yards  for  the  account  of  the  Allied  and  Associated 
Governments  an  amount  of  tonnage  to  be  laid  down  within  a  specified  period  of 
years  and  under  the  direction  of  the  Reparation  Commission. 

2  Annex  IV  of  Part  VIII,  in  which  the  plan  of  physical  restoration  of  in- 
vaded areas  was  elaborated. 

3  Annex  V,  Part  VIII. 

^  Annex  VI,  Part  VIII.  See,  also,  so-called  Special  Provisions  embraced 
in  Arts.  245,  246  and  247,  with  reference  to  the  restoration  to  the  French 
Government,  to  the  King  of  the  Hedjaz,  and  to  Belgium,  respectively,  of  cer- 
tain tangible  articles.  By  Art.  247,  Germany  undertook  also  to  furnish  to 
the  University  of  Louvain  manuscripts,  incunabula,  printed  books,  maps  and 
objects  of  collection  corresponding  m  number  and  value  to  those  destroyed 
in  the  burning  by  Germany  of  the  Library  of  Louvain. 

*  Art.  260.  The  countries  specified  were  Russia,  China,  Turkey,  Austria, 
Hungary  and  Bulgaria,  as  well  as  their  possessions  or  dependencies,  and  also 
any  territory  formerly  belonging  to  Germany  or  her  allies,  to  be  ceded  by 
Germany  or  her  allies  to  any  Power,  or  to  be  administered  by  a  Mandatory 
under  the  treat\\ 

It  shoidd  be  noted  that  Germany  agreed  to  assume  responsibility  for  in- 
demnifying her  nationals  so  dispossessed. 

8  Art.  259.  In  the  same  Article  Germany  undertook  to  transfer,  either 
to  Roumania  or  to  the  Principal  Allied  and  Associated  Powers,  as  the  case 
might  be,  all  monetary  instruments,  specie,  secm-ities  and  negotiable  instru- 
ments, or  good>,  which  she  had  received  under  the  treaties  of  Bucharest  and 
of  Brest-Litovsk.  According  to  this  Article  Germany  recognized  an  obliga- 
tion to  make  annually  for  the  period  of  twelve  j^ears  the  payments  in  gold 
"for  which  provision  Ls  made  in  the  German  Treasury  Bonds  deposited  by 
her  from  time  to  time  in  the  name  of  the  Council  of  the  Administration  of  the 
Ottoman  Public  Debt  as  security  for  the  second  and  subsequent  issues  of 
Turkish  Government  currency  notes." 

^  Art.  261.     Particular  reference  was  here  made  to  "any  claims  which  may 

535 


§298]  RIGHTS   AND   DUTIES   OF   JURISDICTION 

property  of  German  nationals  in  territories  of  the  Allied  and 
Associated  Powers,  in  satisfaction  of  claims  of  their  nationals.^ 

The  foregoing  requirements,  which  were  supplemented  by  nu- 
merous others  providing  for  special  undertakings  in  relation  to 
particular  matters,^  indicate  the  scope  of  the  general  obligation 
assumed  and  the  plan  of  its  fulfillment.  The  treaty  established 
the  theory  of  liabilities,  leaving  for  solution  questions  respecting 
the  amount  of  damage  sustained  by  the  Allied  and  Associated 
Powers.  In  performing  the  task  of  estimating  the  extent  of  that 
damage,  and  of  regulating  the  times  and  modes  of  making  com- 
pensation for  it,  the  Reparation  Commission  appears  to  have 
been  designed  to  exercise  an  administrative  rather  than  a  judicial 
function. 

(b) 

§  299.   Adjustment  of  Claims  of  Nationals  of  Allied  and 
Associated  Powers. 

The  treaty  made  provision  that  the  nationals  of  Allied  and 
Associated  Powers  should  be  entitled  to  compensation  in  respect  of 
damage  or  injury  inflicted  upon  their  property,  rights  or  interests, 
including  any  company  or  association  in  which  they  were  inter- 
ested, in  German  territory  as  it  existed  August  1,  1914,  by  the 
application  of  exceptional  war  measures  or  measures  of  transfer.^ 
It  was  declared  that  such  claims  should  be  investigated  and  the 
amount  of  compensation  determined  by  the  Mixed  Arbitral  Tri- 
bunal (provided  for  in  Section  VI  of  Part  X),  or  by  an  arbitrator 
appointed  by  the  Tribunal.  It  seems  important  to  observe  that 
while  such  compensation  was  to  be  borne  by  Germany,  it  was 
agreed  that  it  might  be  charged  upon  the  property  of  German 
nationals  within  the  territory  or  under  the  control  of  the  claimant's 
State,"*  and  that  such  property  might  be  constituted  as  a  pledge 

arise,  now  or  hereafter,  from  the  fulfillment  of  undertakings  made  by  Germany 
during  the  war  to  those  Governments." 

1  Art.  297  (b),  (e)  and  (i).  By  this  Article  Germany  undertook  to  conipen- 
sate  her  nationals  in  respect  of  the  sale  or  retention  of  their  property,  rights 
or  interests  in  Allied  or  Associated  States.     See,  also,  Art.  252. 

2  See,  for  example,  the  provisions  of  Art.  232,  whereby  Germany,  in  accord- 
ance with  pledges  previously  given,  as  to  the  complete  restoration  of  Belgium, 
in  addition  to  compensation  for  damage  elsewhere  provided  for,  as  a  conse- 
quence of  a  violation  of  the  Treaty  of  1839,  undertook  "to  make  reimburse- 
ment of  all  sums  which  Belgium  has  borrowed  from  the  Allied  and  Associated 
Governments  up  to  November  11,  1918,  together  with  interest  at  the  rate  of 
five  per  cent.  (5%)  per  annum  on  such  sums." 

^  Such  measures  were  defined  in  paragraphs  1  and  3  of  the  Annex  following 
Art.  298. 

4  Art.  297  (b)  and  (e). 

536 


ADJUSTMENT    OF    CLAIMS  [§  299 

for  enemy  liabilities  under  conditions  fixed  by  a  later  paragraph.^ 
No  distinction  based  upon  the  place  of  residence  of  German  na- 
tionals whose  property  might  be  utilized  in  satisfaction  of  claims 
against  Germany  was  here  recognized.  The  treaty  appeared  to 
permit  the  same  uses  of  the  property  of  such  nationals  dwelling 
within  the  territory  of  an  Allied  or  Associated  Power  as  of  that 
owned  by  such  individuals  residing  in  German  territory,  provided 
the  property  were  in  the  control  of  a  claimant  State.  Any  rule 
of  restraint  was  thus  left  to  the  domestic  policy  of  the  latter. 

As  a  means  of  satisfying  the  claims  of  the  owners  of  property 
who  were  nationals  of  Allied  or  Associated  Powers  "  within  whose 
territory  legislative  measures  prescribing  the  general  liquidation 
of  enemy  property,  rights  or  interests  were  not  applied  before  the 
signature  of  the  Armistice  ",  and  whose  property  had  been  subjected 
to  a  measure  of  transfer  in  German  territory,  special  provision 
was  made.  It  was  agreed  that  in  such  a  case  (following  the  ar- 
bitral procedure  prescribed  in  other  cases)  the  claimant  express- 
ing a  desire  for  restitution,  should  have  his  claim  satisfied  by  the 
restitution  of  his  property  if  it  should  still  exist  in  specie.^  If 
restitution  could  not  be  so  effected,  it  was  declared  that  private 

1  See  paragraph  4  of  Annex  following  Art.  298,  containing  the  following 
important  provision  :  "  All  property,  rights  and  interests  of  German  nationals 
within  the  territory  of  any  Allied  or  Associated  Power  and  the  net  proceeds 
of  their  sale,  liquidation  or  other  dealing  therewith  may  be  charged  by  that 
Allied  or  Associated  Power  in  the  first  place  with  payment  of  amounts  due 
in  respect  of  claims  by  the  nationals  of  that  Allied  or  Associated  Power  with 
regard  to  their  property,  rights  and  interests,  including  companies  and  as- 
sociations in  which  they  are  interested,  in  German  territory,  or  debts  owing 
to  them  by  German  nationals,  and  with  payment  of  claims  growing  out  of 
acts  committed  bv  the  German  Government  or  by  any  German  authorities 
since  July  31,  1914,  and  before  that  Allied  or  Associated  Power  entered  mto 
the  war.  The  amount  of  such  claims  may  be  assessed  by  an  arbitrator  ap- 
pointed by  Mr.  Gustave  Ador,  if  he  is  willing,  or  if  no  such  appointment  is 
made  by  him,  by  an  arbitrator  appointed  by  the  Mixed  Arbitral  Tribunal 
provided  for  in  Section  VI.  They  may  be  charged  in  the  second  place  with 
payment  of  the  amounts  due  in  respect  of  claims  by  the  nationals  of  such 
Allied  or  Associated  Power  with  regard  to  their  property,  rights  and  interests 
in  the  territory  of  other  enemy  powers,  in  so  far  as  those  claims  are  otherwise 
unsatisfied." 

From  the  Reply  of  the  Allied  and  Associated  Powers  to  the  Observations 
of  the  German  Delegation  on  the  Conditions  of  Peace,  accompanying  M. 
Clemenceau's  letter  of  June  16,  1919,  Misc.  No.  4  (1919)  [Cmd.  258],  p.  54, 
it  appears  that  the  foregoing  provision  respecting  the  assessment  of  claims  by 
an  arbitrator  to  be  appointed  by  Mr.  Gustave  Ador  or  otherwise,  had  refer- 
ence to  the  treatment  of  claims  growing  out  of  acts  committed  by  the  German 
Government  between  July  31,  1914,  and  the  date  at  which  the  particular 
claimant  State  became  a  belligerent. 

2  Art.  297  (/).  It  was  declared  in  this  connection,  that  in  such  case  Ger- 
many should  take  all  necessary  steps  to  restore  the  evicted  owner  to  the 
possession  of  his  property,  free  from  all  encumbrances  or  burdens  with  which 
it  might  have  been  charged  after  the  liquidation,  and  to  indemnify  all  third 
parties  injured  by  the  restitution. 

537 


§  299]  RIGHTS   AND    DUTIES   OF   JURISDICTION 

agreements  arranged  by  the  intermediation  of  the  Powers  con- 
cerned or  the  Clearing  Offices  (provided  for  in  the  Annex  to  Section 
III  of  Part  X)  might  be  made,  in  order  that  the  claimant  might 
secure  compensation  for  his  injury  by  the  grant  of  advantages  or 
equivalents  which  he  could  agree  to  accept  in  the  place  of  the 
property,  rights  or  interests  of  which  he  had  been  deprived.^ 

It  seems  to  have  been  the  design  of  the  contracting  parties  that 
the  establishing  of  the  nature  and  amount  of  a  claim  of  a  national 
of  an  Allied  or  Associated  Power  against  Germany  should,  in  the 
absence  of  agreement,  require,  as  a  condition  precedent  to  its  satis- 
faction, and  regardless  of  the  particular  assets  to  be  utilized  for 
that  purpose,  a  recourse  to  arbitration. ^ 


The  Relation  of  a  State  to  Acts  of  Insurgents 

(1) 
§  300.   Acts  of  Unsuccessful  Insurgents. 

Unsuccessful  insurgents  are  not  the  agents  of  the  State  which 
suppresses  them.  For  their  acts,  which  it  is  unable  to  control, 
the  territorial  sovereign  is  not,  therefore,  responsible.  This 
principle  has  received  the  definite  sanction  of  courts  of  arbitra- 
tion.^    Notwithstanding  some  diversity  of  opinion  expressed  in 

lArt.  297(/). 

According  to  Art.  297  (h),  it  was  provided  that  except  in  cases  where 
restitutions  in  specie  should  have  been  made,  the  net  proceeds  of  sales  of 
enemy  property,  rights  or  interests  wherever  situated,  carried  out  either  by 
virtue  of  war  legislation,  or  by  application  of  this  Article,  and  in  general,  all 
cash  assets  of  enemies  should  be  dealt  with  as  follows  : 

"(1)  As  regards  Powers  adopting  Section  III  [of  Part  X],  and  the  Annex 
thereto,  the  said  proceed?  and  cash  assets  shall  be  credited  to  the  Power  of 
which  the  owner  is  a  national,  through  the  Clearing  Office  estabhshed  there- 
under; anv  credit  balance  in  favour  of  Germany  resulting  therefrom  shall 
be  dealt  with  as  provided  in  Article  243. 

"  (2)  As  regards  Powers  not  adopting  Section  III  and  the  Annex  thereto, 
the  proceeds  of  the  property,  rights  and  interests,  and  the  cash  assets,  of  the 
nationals  of  Allied  or  Associated  Powers  held  by  Germany  shall  be  paid  im- 
mediately to  the  person  entitled  thereto  or  to  his  Government ;  the  proceeds 
of  the  property,  rights  and  interest-,  and  the  cash  assets,  of  German  nationals 
received  by  an  Allied  or  Associated  Power  shall  be  subject  to  disposal  by  such 
Power  in  accordance  with  its  laws  and  regulations  and  may  be  applied  in  pay- 
ment of  the  claims  and  debts  defined  by  this  Article  or  paragraph  4  of  the 
Annex  hereto.  Any  property,  rights  and  interests  or  proceeds  thereof  or  cash 
assets  not  used  as  above  provided  may  be  retained  by  the  said  Allied  or  As- 
sociated Power  and  if  retained  the  cash  value  thereof  shall  be  dealt  with  as 
provided  in  Article  243."  That  Article  dealt  with  the  reckoning  of  credits  to 
Germanv  in  respect  to  her  reparation  obligations. 

2  Art.' 297  (e),  (/). 

3  See,  generally,  cases  and  publicists  cited  in  Ralston,  Arbitral  Procedure, 

538 


ACTS  OF  UNSUCCESSFUL  INSURGENTS  [§  300 

the  past,  it  appears  now  to  be  accepted  also  by  the  Department 
of  State.^  Thus  in  1911,  it  announced  "that  where  an  armed  in- 
surrection has  gone  beyond  the  control  of  the  parent  government, 

233-245,  but  especially  opinion  of  Ralston,  Umpire  in  Sambiaggio  Case, 
Italian- Venezuelan  Commission,  1903,  Ralston's  Report,  6G6 ;  Guastini  Case 
before  same  Commission,  id.,  730;  Revesno  Case,  before  same  Commission, 
id.,  753  ;  Guerrieri  Case,  before  same  Commission,  id.,  753  ;  Plumley,  Umpire, 
in  Aroa  Mines  Case,  British- Venezuelan  Commission,  1903,  if/.,  344,  350; 
same  Umpire  in  Henriquez  Case,  Netherlands-Venezuelan  Commission,  1903, 
id.,  896;  opinion  of  Paul,  Commissioner,  in  Acquatella  Case,  Netherlands- 
Venezuelan  Commission,  1903,  id.,  487;  opinion  of  Gutierrez-Otero,  Umpire 
in  Padr6n  Case,  Spanish- Venezuelan  Commission,  1903,  id.,  923;  Duffield, 
Umpire  in  Van  Dissel  Case,  German-Venezuelan  Commission,  1903,  id.,  565, 
573 ;  Bainbridge,  Commissioner  in  Jarvis  Case,  American-Venezuelan  Com- 
mission, 1903,  id.,  145,  where  it  was  said  that  the  Government  was  not  liable 
to  the  legatees  of  certain  bonds  issued  by  the  unsuccessful  insurgents  in  pay- 
ment of  services  rendered  by  the  testator.  The  opinion  of  Duffield,  Umpire 
in  the  Kummerow  Case,  German-Venezuelan  Commission,  1903,  id.,  526, 
was  based  upon  the  interpretation  of  the  protocol  under  which  he  acted,  by 
which  in  his  opinion,  Venezuela  assumed  liability  for  the  acts  of  revolutionists. 

See,  also,  Schultz  Case,  Mexican-American  Commission,  Convention  of 
July  4,  1868,  Moore,  Arbitrations,  III,  2973 ;  Walsh  Case,  before  same  Com- 
mission, id.,  2978;  Thornton,  Umpire  in  Wj-man  Case,  before  same  Com- 
mission, id.,  2978;  same  Umpire  in  Silva  Case,  before  same  Commission,  id., 
2979;  McGrady  Case,  Spanish  Commission,  Agreement  of  Feb.  12,  1871,  id., 
2981 ;  Hanna  Case,  British- American  Claims  Commission,  treaty  of  Ma.y  8, 
1871,  id.,  2982,  especially  opinion  of  Frazer,  Commissioner,  id.,  2986;  Laurie 
Case,  before  same  Commission,  id.,  2987;  Stewart  Case,  before  same  Com- 
mission, id.,  2989;  also  Confederate  Debt  Cases  of  Barrett  and  Walker, 
before  same  Commission,  id.,  2900  and  2901 ;  Edgerton  Ca.se,  British-Chilean 
Claims  Commission,  quoted  in  Ralston,  Arbitral  Procedure,  242 ;  Case  of 
Rosa  Gelbtrunk,  Arbitration  between  the  L^nited  States  and  Salvador,  1902, 
For.  Rel.  1902,  877,  878. 

Compare  Venezuelan  Steam  Transportation  Company  Case,  Convention 
between  the  United  States  and  Venezuela,  of  Jan.  12,  1892,  Moore,  Arbitra- 
tions, 1693,  1723;  but  see  dissenting  opinion  of  Andrade,  Commissioner,  id., 
1724;  Case  of  the  Montijo,  Agreement  between  the  United  States  and  Co- 
lombia of  Aug.  17,  1874,  id.,  1421,  1427. 

1  Mr.  Seward,  vSecy.  of  State,  to  Mr.  Smith,  July  9,  1868,  79  MS.  Dom. 
Let.  69,  Moore,  Dig.,  VI,  956;  Same  to  Baron  Gerolt,  Prussian  Minister, 
Jan.  9,  1866,  MS.  Notes  to  Prussian  Legation,  VII,  430,  Moore,  Dig.,  VI, 
957 ;  Mr.  Davis,  Acting  Secv.  of  State,  to  Mr.  Markbreit,  Minister  to  Bolivia, 
No.  55,  July  7,  1871,  MS.  Inst.  Bohvia,  I,  145,  INIoore,  Dig.,  VI,  959;  Mr. 
Bavard,  Secv.  of  State,  to  Messrs.  Busche,  Clark  &  Lvnde,  April  9,  1885, 
S.  Doc.  264,  57  Cong.,  1  Sess.,  10,  Moore,  Dig.,  VI,  961 ;  Same  to  Mr.  Sutphen, 
Jan.  6,  1888,  166  MS.  Dom.  Let.  509,  Moore,  Dig.,  VI,  961 ;  Mr.  Olnev.  Secy. 
of  State,  to  Mr.  Thompson,  Minister  to  Brazil,  No.  315,  Jan.  29,  1896,  MS. 
Inst.  Brazil,  XVIII,  171,  Moore.  Dig.,  VI,  966;  Mr.  Hay,  Secy,  of  State,  to 
Mr.  Rush,  May  18,  1899,  237,  MS.  Dom.  Let.  171,  Moore,  Dig.,  VI,  960. 

Compare  statement  of  Mr.  Brent,  Charge  at  Lima,  to  Mr.  Fish,  Secv.  of 
State,  No.  252,  March  14,  1871,  MS.  Despatches  from  Peru,  Moore,  Dig.',  VI, 
973;  Mr.  Fish,  Secv.  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  No.  21, 
Aug.  15,  1873,  MS.  Inst.  Mexico,  XIX,  18,  Moore,  Dig.,  VI,  974;  Same  to 
Same,  No.  54,  Dec.  16,  1873,  MS.  Inst.  Mexico,  XIX,  48,  Moore,  Dig.,  VI, 
975 ;  Same  to  Same,  No.  241,  July  15,  1875,  MS.  Inst.  Mexico,  XIX,  210, 
Moore,  Dig.,  VI,  980. 

See,  also,  Mr.  Scruggs,  Minister  to  Colombia,  to  Mr.  Fish,  Secy,  of  State, 
No.  166,  May  18,  1876,  concerning  attitude  of  Colombia  in  accepting  re- 
sponsibility for  certain  acts  of  insurgents  in  1875,  MS.  Despatches  from 
Colombia, 'Moore,  Dig.,  VI,  981. 

539 


§300]  RIGHTS   AND    DUTIES   OP   JURISDICTION 

the  general  rule  is  that  such  government  is  not  responsible  for 
damages  done  to  foreigners  by  the  insurgents."  ^ 

If  the  government  which  is  successful  in  its  work  of  repression 
is  burdened  with  responsibility,  it  must  be  because  (a)  it  "has 
failed  to  use  promptly  and  with  appropriate  force  its  constituted 
authority "  to  oppose  the  revolutionists ;  ^  or  (b)  because  it  has 
condoned  by  some  process  their  internationally  illegal  acts ;  or 
(c)  because  it  has  entered  into  a  relationship  whereby  it  has  be- 
come the  legal  successor  to  those  whose  conduct  it  previously 
opposed.  - 

It  should  be  observed  that  the  Government  of  the  United  States 
in  1912  declared  that  it  could  not  admit  "the  existence  of  any 
such  unqualified  rule  as  that  stated  by  the  Mexican  Government" 
to  the  effect  that  "when  a  government  finds  itself  temporarily 
unable  to  repress  within  its  territory  all  the  punishable  acts  re- 
sulting from  insurrection  or  civil  war,  it  is  not  responsible  for  the 
damages  which  foreigners  may  suffer  in  person  or  property  during 
the  course  of  the  campaign  as  a  consequence  of  the  measures  that 
the  government  may  find  it  necessary  to  take  in  order  to  recover 
its  dominion."  ^ 

The  foreign  State  whose  nationals  are  subjected  to  improper 
treatment  by  insurgents  may,  during  the  course  of  the  conflict, 
justly  urge  the  government  to  bend  every  effort  to  accord 
adequate  protection  ;  "^  and  vigorous  protest  will  be  forthcoming  if 
that  government  fails  to  render  such  protection  as  it  is  known  to 

1  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Wilson,  Ambassador  to  Mexico, 
Nov.  7,  1911,  For.  Rel.  1912,  946-947,  in  which  attention  was  called  to  Moore, 
Dig.,  VI,  949  et  seq.  Also  Mr.  Wilson,  Acting  Secy,  of  State,  to  Mr.  Wilson, 
American  Ambassador  to  Mexico,  April  8,  1912,  For.  Rel.  1912,  961. 

2  Ralston,  Umpire  in  the  Sambiaggio  Case,  Italian-Venezuelan  Commission, 
1903,  Ralston's  Report,  666,  680. 

A  State  may,  as  a  matter  of  grace,  undertake  to  indemnify  foreigners  for 
losses  caused  by  revolutionists.  Its  mere  declaration  as  to  the  motive  for 
payment,  is  not,  however,  decisive  of  the  absence  of  any  duty  to  make  redress. 
See  claim  of  J.  H.  Hayball  v.  Peru,  For.  Rel.  1901,  427-430,  Moore,  Dig.,  VI, 
990.  When  a  State  remunerates  its  own  citizens,  it  may  anticipate  a  demand 
that  resident  aliens  be  given  similar  treatment.  Mr.  Evarts,  Secy,  of  State, 
to  Mr.  Langston,  Minister  to  Haiti,  No.  62,  March  24,  1879,  MS.  Inst.  Haiti, 
No.  188,  Moore,  Dig.,  VI,  960.  A  State  may  by  treaty  assume  a  special 
responsibility  for  act^  committed  within  a  given  area,  whosoever  may  be  the 
actors.  Report  of  Mr.  Bayard,  Secy,  of  State,  to  the  President,  Feb.  19,  1887, 
respecting  the  special  obligation  of  Colombia  towards  the  United  States,  aris- 
ing from  Art.  XXXV  of  the  treaty  of  1846.  H.  Ex.  Doc.  183,  49  Cong.,  2 
Sess.,  Moore,  Dig.,  VI,  960. 

^  Mr.  Knox,  Secy,  of  State,  to  the  American  Charge  d' Affaires  in  Mexico, 
Dec.  19,  1912,  For.  Rel.  1912,  984;  also  communication  of  Mr.  Lascurain, 
Mexican  Minister  of  Foreign  Affairs,  to  same,  Nov.  23,  1912,  id.,  982. 

*  Mr.  Olnev,  Secy,  of  State,  to  Mr.  Tavlor,  Minister  to  Spain,  Dec.  15, 
1896,  For.  Rel.  1896,  704,  Moore,  Dig.,  VI,  968;  Same  to  Messrs.  Lauman  & 
Kemp,  Jan.  13,  1896,  207  MS.  Dom.  Let.  146,  Moore,  Dig.,  VI,  967. 

540 


ACTS   OF  UNSUCCESSFUL  INSURGENTS  [§  300 

possess  the  ability  to  afford.^  If  after  the  suppression  of  the  re- 
volt, claims  for  indemnity  are  referred  to  a  court  of  arbitration, 
the  claimant  State  has  the  burden  of  proving  neglect  on  the  part 
of  the  respondent.^ 

While  the  freedom  of  the  successful  government  from  respon- 
sibility on  account  of  acts  of  insurgents  which  it  has  been  unable 
to  control  is  due  to  the  fact  of  belligerency  rather  than  to  the 
relation  of  the  claimant  State  thereto,  the  latter  may,  by  its  con- 
duct, admit  that  at  the  time  of  the  commission  of  wrongful  acts 
by  insurgents,  the  government  lacked  the  power  of  prevention  or 
suppression.^  This  is  true  not  only  when  the  claimant  State 
recognizes  the  insurgents  as  belligerents,^  but  also  when  it  recog- 
nizes the  existence  of  a  status  of  insurgency.^ 

1  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Dupuy  de  Lome,  Spanish  Minister, 
July  6,  1897,  For.  Rel.  1897,  516,  Moore,  Dig.,  VI,  969;  Mr.  Adee,  Acting 
Secy,  of  State,  to  same,  July  29,  1897,  For.  Rel.  1897,  519,  Moore,  Dig.,  VI, 
970 ;  Mr.  Olney,  Secy,  of  State,  to  Mr.  Terrell,  Minister  to  Turkey,  Oct.  17, 
and  Oct.  28,  1896,  For.  Rel.  1896,  892,  893,  Moore,  Dig.,  VI,  965. 

2  Ralston,  Umpire  in  Revesno  Case,  Italian-Venezuelan  Commission,  1903, 
Ralston's  Report,  753  ;  Henriquez  Case,  Netherlands-Venezuelan  Commission, 
1903',  id.,  896.  See,  also,  Mr.  Uhl,  Acting  Secy,  of  State,  to  Mr.  Springer, 
United  States  Vice-Consul-General  at  Havana  July  1,  1895,  For.  Rel.  1895,  II, 
1216,  Moore,  Dig.,  VI,  967. 

In  the  Special  Report  of  William  E.  Fuller,  Assist.  Atty-Gen.,  with  respect 
to  principles  laid  down  by  the  Spanish  Treaty  Claims  Commission,  it  is  said 
that  the  Commission  made  it  clear  to  the  claimants  :  "  That  in  order  to  recover 
for  damages  done  by  insurgents  it  was  necessary  for  them  to  allege  and  prove 
that  at  the  time  and  place  when  and  where  the  injury  was  done  the  Spanish 
authorities  could,  by  due  diligence,  and  should  have  prevented  such  injury." 
Fuller's  Report,  25. 

'  Declared  Commissioner  Wadsworth,  in  Prats  Case,  Mexican- American 
Commission,  Convention  of  July  4,  1868,  Moore,  Arbitrations,  2886,  2888, 
"  Nonresponsibility  on  the  part  of  the  United  States  for  injuries  by  the  Con- 
federate enemy  within  the  territories  of  that  Government  to  aliens  did  not 
result  from  the  recognition  of  the  belligerency  of  the  rebel  enemy  by  the 
strangers'  sovereign.  It  resulted  from  the  fact  of  belligerency  itself,  and 
whether  recognized  or  not  by  other  governments.  But  the  proclaimed  recogni- 
tion of  the  fact  by  a  government  is  conclusive  evidence  of  the  fact,  and  so  to 
speak,  an  estoppel  as  to  that  government." 

*  Dana's  Wheaton,  Note  No.  15,  citing  Mr.  Adams  to  Mr.  Seward,  June  11, 
1861,  Dip.  Cor.  105,  Moore,  Dig.,  I,  165,  166.  Concerning  the  conditions 
and  effects  of  Recognition  of  Belligerency,  supra,  §  47. 

^  Statement  in  Moore,  Dig.,  I,  242-243,  concerning  the  recognition  of  the 
state  of  insurgency  or  revolt  as  a  distinctive  condition  by  the  United  States 
in  the  case  of  the  Cuban  Insurrection  of  1895-1898,  and  documents  there  cited, 
especially  The  Three  Friends,  166  U.  S.  63-64,  65-66. 

"The  United  States  recognized  a  state  of  insurgency  as  existing  in  Cuba 
at  an  early  date.  .  .  .  The  recognition  of  insurgency  impUed  that  in  Ameri- 
can opinion  at  least  the  in.surgents  were  not  de  facto  under  the  control  of  Spain, 
could  not  be  held  liable  to  neutral  citizens  for  their  Acts."  Elbert  J.  Benton, 
International  Law  and  Diplomacy  of  the  Spanish-American  War,  34-37. 

"2.  Although  the  late  insurrection  in  Cuba  assumed  great  magnitude  and 
lasted  for  more  than  three  years,  yet  belligerent  rights  were  never  granted 
to  the  insurgents  by  Spain  or  the  United  States  so  as  to  create  a  state  of  war 
in  the  international  .sense  which  exempted  the  parent  government  from  lia- 
bility to  foreigners  for  the  acts  of  the  insurgents.     3.    But  where  an  armed 

541 


§300]         RIGHTS   AND    DUTTRS   OF   JURISDICTION 

The  effect  of  amnesty  for  acts  of  unsuccessful  revolutionists 
upon  the  liability  of  the  grantor  State  appears  to  depend  upon  the 
scope  of  the  pardon  given.  The  purpose  of  such  a  grant  is  to  par- 
don the  commission  of  acts  incidental  to  revolution  and  directed 
against  the  grantor,  and  also  to  render  the  actors  harmless  from 
prosecution.  It  may  naturally  embrace  internationally  illegal 
acts  incidental  to  the  conflict  and  committed  for  a  public  rather 
than  a  private  end  and  against  whomsoever  directed.^  The  par- 
don of  insurgents  on  account  of  acts  of  revolution  does  not  nec- 
essarily condone  the  method  by  which  they  were  accomplished ; 
nor  does  it  necessarily  deprive  the  alien  victim,  if  there  be  one,  of 
any  valuable  right,  inasmuch  as  the  actors  could  not,  even  in  the 
absence  of  a  grant  of  amnesty,  be  held  accountable  to  private 
suitors  in  the  local  courts  for  the  commission  of  acts  of  a  bellig- 
erent character  incidental  to  the  conflict.^ 

insurrection  has  gone  beyond  the  control  of  the  parent  government,  the 
general  rule  is  that  such  government  is  not  responsible  for  damages  done  to 
foreigners  by  the  insurgents.  4.  This  CommLssion  will  take  judicial  notice 
that  the  insurrection  in  Cuba,  which  resulted  in  intervention  by  the  United 
States  and  in  war  between  Spain  and  the  United  States,  passed,  from  the  first, 
beyond  the  control  of  Spain,  and  so  continued  until  such  intervention  and  war 
took  place.  If,  however,  it  be  alleged  and  proved  in  any  particular  case 
before  this  Commission  that  the  Spanish  authorities  by  the  exercise  of  due 
diligence  might  have  prevented  the  damages  done,  Spain  will  be  held  liable 
in  t.hat  case."  Statement  of  Mr.  Wm.  E.  Chandler,  President  of  Spanish 
Treaty  Claims  Commission,  Nov.  24,  1902,  concurred  in  by  Commissioners 
Diekema  and  Wood,  Fuller's  Report,  153,  Moore,  Dig.,  VI,  971. 

*  Clause  4  of  the  Terms  of  Surrender  of  the  Boer  Forces  in  the  Field  (see 
Parliamentary  Papers,  South  Africa,  1902,  Cd.  1096,  quoted  in  Oppenheim, 
2  ed.,  II.  334,  Note  2)  excludes  from  the  amnesty  "certain  acts,  contrary  to 
usages  of  war,  which  have  been  notified  by  the  Commander-in-chief  to  the 
Boer  Generals,  and  which  shall  be  tried  by  court-martial  immediately  after 
the  close  of  hostilities." 

See,  also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Foster,  Minister  to  Mexico, 
No.  241,  July  15,  1875,  regarding  a  reservation  in  favor  of  the  claims  of  injured 
parties,  in  the  pardon  granted  by  Mexico  to  rebels  whose  conduct  in  forcing 
loans  from  American  citizens  at  Monterev  had  become  the  subject  of  diplo- 
matic discussion.     MS.  Inst.  Mexico,  XIX,  210,  Moore,  Dig.,  VI,  980. 

2  Declared  Sir  E.  Thornton,  Umpire,  Mexican-American  Commission, 
Convention  of  July  4,  1868,  in  the  Devine  Case  :  "  It  is  urged  that  the  Mexican 
government  granted  an  amnesty  to  Carvajal  and,  therefore,  made  itself  re- 
sponsible for  his  acts.  Other  governments,  including  that  of  the  United  States, 
have  pardoned  rebels,  but  they  have  not  on  this  account  engaged  to  reimburse 
to  private  individuals  the  losses  caused  by  these  rebels."  Moore,  Arbitra- 
tions, III,  2981. 

It  is  said  in  Ralston,  Arbitral  Procedure,  244 :  "It  is  to  be  noted  that,  be- 
fore the  various  commissions  sitting  to  determine  the  liability  of  the  United 
States  growing  out  of  the  acts  in  connection  with  the  Civil  War,  it  seems 
never  to  have  been  urged  that  this  country  had  assumed  responsibility  for 
the  acts  of  the  Confederacy  because  of  having  pardoned  its  leaders." 

In  the  Case  of  the  Montijo,  agreement  between  the  United  States  and 
Colombia  of  Aug.  17,  1874,  Moore,  Arbitrations,  II,  1421,  1438,  Mr.  Bunch, 
Umpire,  was  of  opinion  that  the  effect  of  the  amnesty  took  from  the  claimants 
a  legal  right  to  adjudicate  their  claim  against  the  actors  within  the  domestic 

542 


PAYMENT  OF  DUTIES  AND  TAXES  TO  INSURGENTS     [§  301 

On  the  other  hand,  if  the  amnesty  should  embrace  the  com- 
mission of  internationally  illegal  acts,  shown  to  be  of  a  private 
rather  than  a  public  character,  and  not  fairly  to  be  regarded  as 
incidental  to  the  conflict  in  the  course  of  which  they  were  com- 
mitted, condonation  would  be  apparent.  In  such  case  the  State, 
by  shielding  the  actors  from  prosecution,  might  be  said  to  approve 
of  the  WTong  done,  and  by  failing  to  prosecute  the  actors,  would 
itself  become  neglectful  of  a  duty  of  jurisdiction.  From  such 
condonation  responsibility  would  arise. ^ 

Should  the  de  jure  government  enter  into  an  agreement  with 
the  revolutionists  to  cooperate  in  establishing  a  new  government  as 
the  representative  of  the  two  opposing  forces,  it  might  be  urged 
by  a  foreign  claimant  State,  that  that  government  as  the  resultant 
of  both  parties,  would  be  the  legal  successor  of  each,  and  hence 
responsible  for  the  illegal  acts  attributable  to  the  authorities  of 
each.  Such  was  substantially  the  position  of  jNIr.  Buck,  Ameri- 
can Minister  to  Peru,  in  claiming  an  indemnity  in  behalf  of  one 
Victor  H.  MacCord,  an  American  citizen  who  had  sustained  ill 
treatment  at  the  hands  of  the  revolutionary  forces  of  General 
Caceres  in  1885.^ 

(2) 

§  301.   Payment  of  Duties  and  Taxes  to  Insurgents. 

The  payment  of  customs  duties  or  taxes  by  foreigners  to  in- 
surgents controlling  the  territory  where  payment  is  demanded 

courts.  It  may  be  observed  that  in  this  case  the  seizure  of  the  Montijo  was 
accompUshed  by  certain  persons  allied  with  the  revolutionary  cause  and  for  a 
public  purpose.  See,  also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Hurlburt,  June  21, 
1871,  For.  Rel.  1871,  230.  Moore,  Arbitrations,  II,  1423,  note  1. 

^  In  Ralston,  Arbitral  Procedure,  244,  it  is  said :  "  No  case  seems  to  have 
discussed  a  possible  difference  which  might  arise  between  the  effects  of  an 
amnesty  granted  for  the  political  offense  of  rebellion  and  one  covering  as  well 
private  offenses  against  individuals,  engaged  in  when  the  person  charged  was 
pursuing  a  rebellious  course."     See,  also,  Oppenheim,  2  ed.,  II,  335. 

-  Communication  to  Mr.  .AJzamora,  Peruvian  Minister  of  For.  Rel.,  Sept.  3, 
1888,  For.  Rel.  1888.  II,  1373,  Moore,  Dig.,  VI,  985-987.  See,  also,  concern- 
ing the  same  case,  Mr.  Rives,  Acting  Secy,  of  State,  to  Mr.  Buck,  Minister  to 
Peru,  Oct.  8,  1888,  For.  Rel.  1888,  II,  1377,  Moore,  Dig.,  VI,  987;  and  Mr. 
Olney,  Secy,  of  State,  to  Mr.  McKenzie,  Minister  to  Peru,  June  27,  1896, 
S.  Doc.  7,  55  Cong.,  1  Scss.,  4-7,  Moore,  Dig.,  VI,  989;  also  further  documents 
concerning  same  case,  id.,  990. 

In  his  message  to  Congress,  Aug.  27,  1913,  concerning  relations  with  Mexico, 
President  Wilson  stated  that  he  had  instructed  Mr.  Lind,  his  personal  repre- 
sentative, to  urge  the  agreement  of  all  parties  in  Mexico  to  abide  by  the  results 
of  a  contemplated  election  and  to  cooperate  in  the  most  loyal  way  in  organiz- 
ing and  supporting  the  administration  to  be  chosen.  (Am.  J.,  VII,  Supp., 
279.)  It  is  believed  that  if  the  revolutionary  forces  had  agreed  with  the  pro- 
visional government  of  that  country  in  the  way  suggested,  the  resultant  gov- 
ernment might  have  been  regarded  as  the  successor  of  the  several  factions,  and 
responsible  for  the  internationally  illegal  acts  of  each. 

543 


§  301]         RIGHTS  AND   DUTIES   OP  JURISDICTION 

and  collection  made,  renders  unreasonable  the  subsequent  exac- 
tion of  payment  by  the  titular  government.^  This  is  due  to  the 
fact  that  obedience  to  the  command  of  the  insurgent  party  in  a 
place  subject  to  its  control  cannot  be  regarded  as  unlawful.^ 

(3) 

§  302.   Acts  of  Successful  Revolutionists. 

A  State  is  responsible  for  the  acts  of  successful  revolutionists, 
as  their  acts  must  be  regarded  as  those  of  the  government  which 
they  have  established.  This  principle  has  met  with  general 
recognition.^ 

J 
Contractual  Claims  against  Foreign  Governments 

(1) 
§  303.    The  Practice  of  Withholding  Interposition. 

Ever  since  the  days  of  ]\Iadison  the  United  States  has  been  re- 
luctant to  interpose  in  behalf  of  a  citizen  seeking  redress  from  a 
foreign  State  on  account  of  its  disregard  of  the  terms  of  a  contract 

^  Mr.  Black,  Secy,  of  State,  to  Lord  Lyons,  British  Minister,  Jan.  10,  1861, 
MS.  Notes  to  Great  Britain,  VIII.  383,  Moore,  Dig.,  VI,  995.  Following  the 
foregoing  communication  in  response  to  an  inquiry  made  by  the  British 
Minister  as  to  what  position  the  United  States  would  take  regarding  the 
action  of  the  authorities  of  South  Carolina  in  exacting  duties  during  the  Civil 
War,  Mr.  Moore  adds :  "It  may  be  superfluous  to  say  that  no  claim  for  the 
repayment  of  duties  thus  exacted  was  ever  made  bv  the  United  States."  Id., 
VI,  995.     See,  also,  McLeod  v.  United  States,  229  U.  S.  416. 

Mr.  Hunter,  Acting  Secv.  of  State,  to  Mr.  Scruggs,  Minister  to  Colombia, 
Sept.  11,  1875,  MS.  Inst.  Colombia,  XVII,  2,  Moore,  Dig.,  VI,  995;  Santa 
Clara  Estates  Company  Case,  British-Venezuelan  Commission,  1903,  Ralston's 
Report,  397;  Guastini  Case,  Italian-Venezuelan  Commission,  1903,  id.,  730; 
case  at  Bluefields,  For.  Rel.  1900,  803-824,  Moore,  Dig.,  VI.  684-688. 

In  correspondence  with  the  Colombian  Minister  in  1885,  Mr.  Bayard,  Secy. 
of  State,  pointed  out  the  unreasonableness  of  imposing  upon  foreigners  who 
had  paid  imposts  to  rebel  forces,  the  burden  of  proof  that  positive  coercion 
wa^  resorted  to  against  them.  Communication  of  Dec.  11,  1885,  For.  Rel. 
1885,  281,  Moore,  Dig..  VI,  997. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Nelson,  Minister  to  Mexico,  Feb.  11,  1873, 
For.  Rel.  1873,  1,654,  Moore,  Dig.,  I,  49;  Mr.  Bayard,  Secy,  of  State,  to  Mr. 
Becerra,  Colombian  Minister,  June  1,  1885,  For.  Rel.  1885,  269,  Moore,  Dig., 
VI,  995 ;  Mr.  Hay,  Secv.  of  State,  to  Mr.  Merrv,  Minister  to  Nicaragua, 
Oct.  2,  1899,  For.'  Rel.  1900,  810,  811;  de  Forge  Case,  French-American 
Claims  Commi-ssion,  Convention  of  Jan.  15,  1880,  Moore,  .Arbitrations,  2781, 
where  the  payment  of  duties  was  not  deemed  to  be  an  act  to  aid  and  comfort 
the  Confederate  forces. 

3  Mr.  Evarts.  Secv.  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  No.  615, 
April  5,  1879,  MS.  Inst.  Mexico,  XIX,  556,  Moore,  Dig.,  VI.  991 ;  Mr.  Bavard, 
Secy,  of  State,  to  Mr.  Buck,  Minister  to  Peru,  No.  84,  Aug.  13,  1886,  MS.  Inst. 
Peru,  XVII,  228,  Moore,  Dig.,  VI,  992;    Mr.  Hay,  Secy,  of  State,  to  Mr. 

544 


THE  PRACTICE   OF  WITHHOLDING  INTERPOSITION     [§  303 

concluded  with  him.  It  has  frequently  been  declared  that  unless 
the  conduct  of  the  contracting  State  was  tortious,  the  citizen 
should  be  left  to  his  own  devices,  save  for  the  possible  assistance 
derived  from  the  good  offices  of  his  country  lent  for  the  purpose 
of  encouraging  the  foreign  State  to  give  careful  attention  in  a 
domestic  sense  to  the  equities  of  the  case.^  This  practice  has  en- 
couraged belief  that  the  United  States  has  developed  a  rule  of 
procedure,  peculiar  to  contractual  claims  and  not  applied  by  it- 
self to  those  of  different  origin  .^  It  has  been  contended  also  that 
national  reluctance  to  interpose  is  based  solely  upon  grounds  of 
expediency.^  It  may  be  doubted  whether  either  suggestion  ex- 
plains fully  what  has  taken  place.  If  cases  in  which  interposition 
is  commonly  withheld  possess  also  an  element  which,  whenever 
present  in  claims  of  different  origin,  serves  also  to  produce  a  like 
result,  the  treatment  accorded  the  former  would  merely  emphasize 
the  existence  of  a  principle  of  general  applicability.  Moreover, 
habitual  unwillingness  on  the  part  of  a  State  under  well-defined 
circumstances  to  lend  its  aid  to  its  own  nationals  burdened  with 
contractual  issues  with  foreign  governments,  might  encourage  the 
inference  that  a  sense  of  justice  rather  than  one  of  expediency 
impels  restraint. 

It  has  been  seen  that  the  propriety  of  interposition  depends  pri- 

Dudley,  Minister  to  Peru,  Nov.  21,  1898,  For.  Rel.  1901,  430;  Moore,  Dig., 
VI,  993. 

See,  also,  Dix  Case,  American-Venezuelan  Commission,  1903,  Ralston's 
Report,  7,  8;   Heny  Case,  before  same  Commission,  td.,  14,  22. 

In  the  Bolivar  Railway  Company  Case,  British-Venezuelan  Commission, 
1903,  Ralston's  Report,  388,  394,  it  was  said  by  Mr.  Plumley,  Umpire  :  "The 
nation  is  responsible  for  the  obligations  of  a  successful  revolution  from  its 
beginning,  because,  in  theory,  it  represented  ab  initio  a  changing  national  will, 
crystallizing  in  the  finally  successful  result.  .  .  .  Success  demonstrates  that 
from  the  beginning  it  was  registering  the  national  will." 

1  Mr.  Madison,  Secy,  of  State,  to  Mr.  Livingston,  Minister  to  France, 
Oct.  27,  1803,  MS.  Inst.  U.  S.  Ministers,  VI,  1.55,  Moore,  Dig.,  VI,  707;  Col- 
lection of  documents  cited,  id.,  VI,  705-707;  Mr.  J.  Q.  Adams,  Secy,  of  State, 
to  Mr.  Salmon,  April  29,  1823,  Am.  State  Pap.,  For.  Rel.,  V,  403,  Moore,  Dig., 
VI,  708;  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Ten  Evck,  Commissioner  to 
Hawaii,  Aug.  28,  1848,  MS.  Inst.  Hawaii,  II,  1,  Moore,  Dig.,  VI,  708;  Mr. 
Marcv,  Secv.  of  State,  to  Mr.  Clay,  Minister  to  Peru,  Mav  24,  1855,  MS.  Inst. 
Peru,'XV,  159,  Moore,  Dig.,  VI,  709;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Miller, 
May  16,  1871,  89  Dom.  Let.  348,  Moore,  Dig.,  VI,  710;  Mr.  Bayard,  Secy, 
of  State,  to  Mr.  Bispham,  June  24,  1885,  156  MS.  Dom.  Let.  88,  Moore,  Dig. 
VI.  716. 

2  E.  M.  Borchard,  "International  Contractual  Claims  and  their  Settle- 
ment", Society  for  Judicial  Settlement  of  International  Dispt'tes,  No.  13,  Balti- 
more, 1913,  4-6,  7-9,  10-11;  same  author.  Diplomatic  Protection,  §112; 
Memorandum  of  Law  Officer  of  Department  of  State,  Dec.  8,  1906,  concerning 
wrongs  done  to  American  citizens  bv  the  Government  of  Venezuela,  Senate 
Doc.  No.  413,  60  Cong.,  1  Sess.,  109;  R.  Floyd  Clarke,  Proceedings,  Am. 
Soc.  of  Int.  Law,  IV,  149. 

^  Clement  L.  Bouvo,  Proceedings,  Am.  Soc.  Int.  Law,  IV,  174,  181. 

545 


§  303]        RIGHTS   AND   DUTIES   OF   JURISDICTION 

marily  upon  a  denial  of  justice  by  the  foreign  territorial  sovereign, 
and  secondarily,  upon  its  failure  to  offer  a  means  of  redress  for 
its  own  delinquency.  Whenever  States  make  adequate  provision 
for  the  adjudication  of  contractual  claims  against  them  before 
domestic  tribunals,  as  they  frequently  do/  the  latter  requirement 
is  wanting,"  and,  howsoever  the  breach  of  contract  is  regarded, 
the  situation  merely  affords  an  illustration  of  the  general  principle 
respecting  the  duty  of  a  claimant  to  exliaust  his  local  remedies.^ 
It  may  be  doubted,  however,  whether  the  mere  breach  of  a 
promise  by  a  contracting  State  with  respect  to  an  alien  is  generally 
looked  upon  as  amounting  to  internationally  illegal  conduct. 
Nor  does  the  motive  w^hich  impels  such  action  appear  to  suffice 

^  "Local  Remedies  are  provided  generally  in  foreign  countries  for  the  settle- 
ment of  contract  claims  founded  upon  contracts  with  the  Government  or  its 
agencies."     Department  of  State,  Claims  Circular  of  1919,  Section  8. 

2  §  145  of  the  Judicial  Code,  36  Stat.  1136,  U.  S.  Comp.  Stat.  1918,  §  1136, 
conferred  upon  the  Court  of  Claims  a  limited  jurisdiction  over  contractual 
claims  against  the  United  States.  That  jurisdiction  appears  to  have  been 
somewhat  restricted  also  by  the  Act  of  March  4,  1915,  §  5,  38  Stat.  996,  U.  S. 
Comp.  Stat.  1918,  §  1136a.' 

According  to  §  153  of  the  Judicial  Code,  36  Stat.  1138,  U.  S.  Comp.  Stat. 
1918,  §  1144,  the  jurisdiction  of  the  Court  of  Claims  is  not  permitted  to  extend 
to  any  claim  against  the  Government,  growing  out  of  or  dependent  upon  any 
treatv  stipulation  "entered  into  with  foreign  nations  or  with  the  Indian  tribes." 

According  to  §  155  of  the  Judicial  Code,  36  Stat.  1139,  U.  S.  Comp.  Stat. 
1918,  §  1146 :  "Aliens  who  are  citizens  or  subjects  of  any  government  which 
accords  to  citizens  of  the  United  States  the  right  to  prosecute  claims  against 
such  government  in  its  courts,  shall  have  the  privilege  of  prosecuting  claims 
against  the  United  States  in  the  Court  of  Claims,  whereof  such  court,  by  reason 
of  their  subject  matter  and  character,  might  take  jurisdiction." 

See,  also,  par.  20,  §  24,  of  the  Judicial  Code,  36  Stat.  1093,  U.  S.  Comp. 
Stat.  191S,  §  991  (20),  giving  concurrent  jurisdiction,  in  certain  classes  of 
cases,  to  the  United  States  District  Courts. 

In  the  case  of  Eastern  Extension  Telegraph  Co.  v.  United  States,  231  U.  S. 
326,  it  was  held  that  while  the  Act  of  March  3,  1887  (the  Tucker  Act),  broad- 
ened the  then  existing  jurisdiction  of  the  Court  of  Claims,  the  Act  was  not 
necessarily  repugnant  to  or  inconsistent  with  the  statutory  limitations  exclud- 
ing from  the  jurisdiction  of  the  Court  claims  arising  from  treaty.  See,  also, 
Eastern  Extension  Telegraph  Co.  v.  United  States,  251  U.  S.  355',  357,  362. 

Concerning  the  right  of  a  British  subject  to  sue  in  the  Court  of  Claims  by 
reason  of  the  reciprocal  treatment  accorded  American  citizens  in  Great  Britain, 
by  a  petition  of  right,  see  United  States  v.  O'Keefe,  11  Wall.  178.  See,  also, 
documents  cited  in  Moore,  Dig.,  VI,  676-677,  relative  to  the  rights  of  Turkish 
and  Russian  subjects  to  sue  in  the  Court  of  Claims;  E.  M.  Borchard,  Diplo- 
matic Protection,  §  70. 

^  Declared  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Bispham,  June  24,  1885 : 
'When  the  alleged  debtor  sovereign  declares  that  his  courts  are  open  to  the 
pursuit  of  the  claim,  this  by  itself  is  a  ground  for  a  refusal  to  interpose.  Since 
the  establishment  of  the  Court  of  Claims,  for  instance,  the  Government  of  the 
United  States  remands  all  claims  held  abroad,  as  well  as  at  home,  to  the  action 
of  that  Court,  and  declines  to  accept  for  its  executive  department  cognizance 
of  matters  which  by  its  own  system  it  assigns  to  the  judiciary."  156  MS.  Dom. 
Let.  88,  Moore,  Dig.,  VI,  715.  Obviously,  the  duty  to  withhold  interposition 
until  local  remedies  have  been  exhausted  is  always  based  on  the  assumption 
that  the  courts  of  the  territorial  sovereign  have  done  nothing  to  forfeit  the 
oonfidence  of  the  outside  world  in  their  integrity  or  abihty. 

546 


INSTANCES    OF    INTERPOSITION  [§  304 

to  attach  to  it  a  lawless  character  which  it  would  otherwise  not 
possess.^  In  the  estimation  of  statesmen  and  jurists,  international 
law  is  probably  not  regarded  as  denouncing  the  failure  of  a  State 
to  keep  such  a  promise,  until  at  least  there  has  been  a  refusal 
either  to  adjudicate  locally  the  claim  arising  from  the  breach,  or, 
following  an  adjudication,  to  heed  the  adverse  decision  of  a  domes- 
tic court.  Upon  the  happening  of  either  of  these  events  the  denial 
of  justice  is  regarded  as  first  apparent.  There  is  then  seen  a 
failure  to  respect  a  duty  of  jurisdiction  which  is  distinct  from 
the  breach  of  the  contract  and  subsequent  to  it  in  point  of  time. 

(2) 

§  304.   Instances  of  Interposition. 

Instances  are  numerous  where  the  foreign  State  commits  an  act 
which  not  only  violates  its  agreement,  but  also  presents  a  tortious 
aspect,  in  evincing,  for  example,  a  wanton  disregard  of  the  duty 
to  protect  the  person  or  property  of  the  claimant.  In  such  a 
situation,  if  justice  is  not  obtainable  through  domestic  channels, 
interposition  finds  justification  because  the  conduct  of  the  con- 
tracting State  partakes  of  a  character  which  is  generally  denounced 
as  illegal,  irrespective  of  the  fact  that  it  is  also  inconsistent  with 
the  contractual  duty  towards  the  claimant.^  This  is  seen  when 
the  contracting  State,  contrary  to  the  terms  of  its  agreement, 
forfeits  a  concession  without  judicial  procedure,^  or  when  it  ar- 

^  The  presence  or  absence  of  bad  faith  on  the  part  of  a  State  in  disregard- 
ing the  terms  of  a  contract  with  an  aHen  is  unimportant  except  as  a  circum- 
stance to  be  considered  in  determining  whether  the  conduct  of  the  State  with 
respect  to  the  ahen  constitutes,  irrespective  of  the  breach  of  contract,  a  denial 
of  justice. 

2  See,  for  example,  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Scott,  Minister  to 
Venezuela,  No.  118,  June  23,  1887,  MS.  Inst.  Venezuela,  III,  574,  Moore, 
Dig.,  VI,  724-725;  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  American 
Minister,  Feb.  28,  1907,  relative  to  the  claim  of  the  New  York  &  Bermudez 
Co.  against  Venezuela,  For.  Rel.  1908,  774,  793. 

3  See,  for  example,  Mr.  Cass,  Secv.  of  State,  to  Mr.  Lamar,  Minister  to 
Central  America.  No  9,  July  25,  1858,  Moore,  Dig.,  VI,  723 ;  Mr.  Bayard, 
Secy,  of  State,  to  Mr.  Scott,  Minister  to  Venezuela,  No.  118,  June  23,  1887, 
MS.  Inst.  Venezuela,  III,  574,  Moore,  Dig.,  VI,  724 ;  Same  to  Same,  No.  122, 
Aug.  12,  1887,  MS.  In.st.  Venezuela,  III,  578,  Moore,  Dig.,  VI,  725;  Ozama 
Bridge  Claim  (Henrv  W.  Thurston)  against  the  Dominican  Government,  For. 
Rel.  1898,  274-291, 'Moore,  Dig.,  VI,  729;  Memorandum  of  W.  L.  Penfield, 
Solicitor  to  the  Dept.  of  State,  concerning  claims  of  Salvador  Commercial 
Company  against  Salvador,  For.  Rel.  1902,  839,  843 ;  opinion  of  a  majority 
of  the  arbitrators  in  the  same  case  under  agreement  with  Salvador  of  Dec.  19, 
1901,  id.,  862,  871  ;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Loring,  American 
Minister,  Oct.  12,  1889,  concerning  the  Delagoa  Bav  Railway  Concession, 
For.  Rel.  1902,  849,  Moore,  Dig.,  VI,  727-728;  Mr.  Olncy,  Secy,  of  State,  to 
Mr.  Gana,  Chilean  Minister,  June  28,  1895,  For.  Rel.  1895,  I,  83,  Moore,  Dig., 
VI,  728 ;   Mr.  Hay,  Secy,  of  State,  to  Mr.  Hunter,  Nov.  4,  1898,  concerning 

547 


§  304]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

bitrarily,  and  without  regard  for  the  decisions  of  its  own  courts 
grants  away  to  others  rights  lawfully  vested  by  contract  in  the 
concessionaire,  thereby  impairing  or  destroying  the  value  of  the 
concession.^  Again,  if  the  territorial  sovereign  does  not  hold  it- 
self amenable  to  suit  in  its  own  courts,^  or  unreasonably  discrim- 
inates against  the  alien  claimant  in  seeking  access  thereto,^  or 
perverts  its  judicial  system  for  purposes  of  oppression  or  for  the 
purpose  of  obtaining  a  decision  in  its  favor,*  the  gross  failure  to 
perform  an  obvious  duty  of  jurisdiction  explains  the  action  of  the 
State  of  the  claimant.  No  principle  peculiar  to  contractual 
claims  is  involved. 

If  redress  is  demanded  on  account  of  a  denial  of  justice  apart 
from  the  breach  of  contract,  the  damages  attributable  to  the 
foreign  territorial  sovereign  ought  logically  to  be  measured 
by  a  delictual  rather  than  by  a  contractual  standard,  that  is, 
by  the  extent  of  the  harm  suffered  by  the  claimant  through 
the  commission  of  internationally  illegal  conduct,  rather  than 
by  the  prospective  benefits  lost  through  the  breach  of  the 
agreement.^     It  is  to  be  observed,  however,  that  when  the  United 

Claim  of  R.  H.  May  v.  Guatemala,  For.  Rel.  1900,  648,  Moore,  Dig.,  VI,  730, 
also  award  of  the  arbitrators  in  this  case,  under  protocol  with  Guatemala,  of 
Feb.  23,  1900,  For.  Rel.  1900,  659.  See,  also,  telegram  of  Mr.  Root,  Secy,  of 
State,  to  Mr.  Fox,  American  Minister  to  Ecuador,  June  15,  1907,  concerning 
the  difficulty  between  the  Ecuadorean  Government  and  the  Guayaquil  and 
Quito  Ry.  Company,  an  American  Corporation,  For.  Rel.  1907,  I,  385. 

1  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  American  Minister,  Feb.  28, 
1907,  concerning  the  claim  of  the  Orinoco  Corporation  against  Venezuela, 
For.  Rel.  1907,  774,  780.  Although  the  Government  of  Venezuela  agreed, 
Feb.  13,  1909,  to  adjust  this  claim  by  arbitration  unless  an  amicable  settle- 
ment were  made  with  the  company  with  the  consent  of  the  United  States,  an 
agreement  for  settlement  was  finally  reached  by  diplomacy  whereby  the 
Venezuelan  Government  undertook  to  pay  the  sum  of  $385,000,  one  eighth 
in  cash,  and  the  balance  in  seven  equal  installments.  Am.  J.,  Ill,  985,  987; 
id.,  Supp.,  Ill,  224. 

See,  also,  the  so-called  Critchfield  Claim  (United  States  &  Venezuela  Co.) 
against  Venezuela,  arising  from  the  destruction  by  increased  taxation  of  the 
vested  rights  of  the  claimant  contrary  to  the  terms  of  its  concession.  For. 
Rel.  1908,  793-796.  Respecting  the  agreement  of  Feb.  13,  1909,  to  adjust 
this  claim  by  arbitration,  and  its  ultimate  settlement  by  diplomacy,  see  Am.  J., 
Ill,  Supp.,  224;   Am.  J.,  Ill,  985-987. 

2  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Gibbs,  Minister  to  Peru,  Oct.  31,  1877, 
For.  Rel.  1895,  II,  1036,  Moore,  Dig.,  VI,  720. 

3  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Langston,  Minister  to  Haiti,  Dec.  13, 
1877,  MS.  Inst.  Haiti,  II,  121,  Moore,  Dig.,  VI.  724.  See,  also,  Mr.  Bayard, 
Secy  of  State,  to  Mr.  Hall,  Minister  to  Central  America,  Sept.  11,  1888,  For. 
Rel.  1888,  I,  165.  Moore,  Dig.,  VI,  727. 

*  Mr.  Root,  Secv.  of  Stite,  to  Mr.  Russell,  American  Minister,  Feb.  28, 
1907,  concerning  claim  of  New  York  &  Bermudez  Co.  against  Venezuela, 
For.  Rel.  1908,  774,  793 ;  Same  to  Same,  June  21,  1907,  id.,  800,  803. 

5  "A  purelv  delictual  action  is  based  upon  detriment  suffered  by  the  plain- 
tiff, and  thatdetriment  is  the  measure  of  damages.  A  purely  contractual  ac- 
tion, on  the  other  hand,  is  based  on  breach  of  promi.se,  whether  accompanied  by 

548 


INSTANCES  OF  INTERPOSITION  [§  304 

States  interposes  in  behalf  of  a  claimant  who  is  able  to  show  a 
breach  of  contract  as  well  as  a  denial  of  justice,  the  Department  of 
State  is  disposed  to  seek  adjustment  of  the  entire  controversy  by 
arbitration/  and  to  clothe  the  arbitral  tribunal  with  jurisdiction 

detriment  or  not,  and  the  measure  of  damages  is  the  benefit  that  would  have 
resulted  to  the  plaintiff  from  performance."  John  William  Salmond,  "The 
History  of  Contract",  Essays  in  Anglo-American  Legal  History,  III,  320-327. 

^  The  history  of  express  assumpsit  in  private  law  affords  an  interesting 
parallel.  In  his  masterlv  essav  upon  the  subject  (originally  published  in 
1888,  in  Harvard  LaiD  Review,  II,  1-18,  53-69,  377-380,  reprinted  in  1909, 
in  Select  Essays  in  Anglo-American  Legal  History,  III,  259,  and  in  1913,  in 
Ames,  Essays  on  Legal  History,  129),  Professor  Ames  showed  that  the  earliest 
cases  of  assumpsit  were  those  where  the  plaintiff  sought  to  recover  damages 
for  a  physical  injury  to  his  person  or  property  caused  by  the  active  miscon- 
duct of  the  defendant,  and  that  it  was  necessary  to  allege  an  undertaking  by 
the  latter  which  had  been  violated.  Thus  an  assumpsit  was  laid  in  the 
declaration  where  the  case  was  "against  a  ferryman  who  undertook  to  carry 
the  plaintiff's  horse  over  the  river  but  who  overloaded  the  boat,  whereby  the 
horse  was  drowned."  Citing  Y.  B.,  22  Ass.  94,  pi.  41.  It  is  said  that  for 
centuries  the  statement  of  the  assumpsit  was  deemed  essential  in  the  count. 
"But  the  actions  were  not  originally,"  declared  the  learned  writer,  "and  are 
not  to-day,  regarded  as  actions  of  contract.  They  have  always  sounded  in 
tort."  The  significance  of  the  assumpsit  is  shown  to  be  due  to  the  primitive 
conception  of  legal  liability.  "The  original  notion  of  a  tort  to  one's  person 
or  property  was  an  injury  caused  by  an  act  of  a  stranger,  in  which  the  plaintiff 
did  not  in  any  way  participate.  ...  If,  on  the  other  hand,  one  saw  fit  to 
authorize  another  to  come  into  contact  with  his  person  or  property,  and 
damage  ensued,  there  was,  without  more,  no  tort.  The  person  injured  took 
the  risk  of  all  injurious  consequences,  unless  the  other  expressly  assumed  the 
risk  himself,  or  unless  the  peculiar  nature  of  one's  calling,  as  in  the  case  of  the 
smith,  imposed  a  customary  duty  to  act  with  reasonable  skill."  It  is  shown 
also  that  an  express  assumpsit  was  originally  an  essential  part  of  the  plaintiff's 
case  in  actions  on  the  case  against  bailees  for  negligence  in  the  custody  of  what 
was  entrusted  to  them,  but  that  with  the  lapse  of  time  it  was  gradually  dis- 
pensed with.  Actions  for  deceit  against  the  vendor  of  a  chattel  upon  a  false 
warranty  likewise  called  for  the  allegation  of  an  undertaking  by  the  defendant, 
although  in  its  origin  the  action  was  one  of  tort.  The  early  struggle  to  main- 
tain actions  on  the  case  for  deceit  both  served  the  purpose  of  emphasizing  the 
unimportance  of  proof  of  a  misfeasance  by  the  defendant  where  the  plaintiff 
through  the  deceit  of  the  defendant  had  been  induced  to  part  with  his  prop- 
erty, and  also  paved  the  way  for  the  maintenance  of  actions  for  the  breach  of 
a  parol  promise,  that  is,  for  a  pure  non-feasance.  Professor  Ames  pointed  out 
that  both  in  equity  and  at  law  "a  remedial  breach  of  a  parol  promise  was 
originally  conceived  of  as  a  deceit ;  that  is,  a  tort.  Assumpsit  was, "  he  added, 
"in  several  instances  distinguished  from  contract.  By  a  natural  transition, 
however,  actions  upon  parol  promises  came  to  be  regarded  as  actions  ex  con- 
tractu. Damages  were  soon  assessed,  not  upon  the  theory  of  reimbursement 
for  the  loss  of  the  thing  given  for  the  promise,  but  upon  the  principle  of  com- 
pensation for  the  failure  to  obtain  the  thing  promised." 

The  requirement  of  the  United  States  to-day  that  a  breach  of  contract  must 
constitute  also  a  tort  in  order  to  be  regarded  as  internationally  illegal  conduct 
and  as  furnishing  just  cause  for  interposition  resembles  the  attitude  of  the 
early  English  judges  respecting  the  remedial  breach  of  a  parol  promise.  The 
tendency  to  devise  means  for  the  obtaining  of  redress  for  something  more  than 
the  harm  suffered  through  the  tortious  conduct  of  the  foreign  State,  and  to 
enable  the  claimant  to  secure  compensation  for  the  loss  of  the  thing  promised, 
suggests  the  struggles  of  jurists  of  the  sixteenth  century.  It  is  as  true  of  public 
contracts  to  which  a  State  is  a  party  as  of  those  between  private  individuals, 
that  a  pure  non-feasance  shown  by  the  breach  of  the  agreement  may  deprive 
the  promisee  of  a  substantial  benefit  which  cannot  be  measured  by  damages 

549 


§304]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

to  award  damages  both  for  the  failure  of  the  claimant  to  obtain 
the  thing  promised,  and  for  the  harm  suffered  through  the  inter- 
nationally illegal  conduct  of  the  foreign  State.^ 

Although  courts  of  arbitration  exercising  jurisdiction  with 
respect  to  contractual  claims  pursuant  to  appropriate  conven- 
tions have  not  hesitated  to  assess  damages  on  a  contractual 
basis,^  they  have  been  unwilling  to  allow  compensation  for  benefits 
of  which  the  claimants  were  unable  to  prove  that  the  breach  of  the 
obligation  had  served  to  deprive  them.^ 

fixed  according  to  a  delictual  standard.  Thus,  as  is  observed  in  the  text, 
effort  is  made  to  obtain  by  arbitration,  adjudication  of  the  contractual  as 
well  as  delictual  delinquency  of  a  foreign  State  whenever  the  conduct  of  the 
latter  is  deemed  to  justify  interposition,  and  to  empower  the  tribunal  to  award 
damages  for  the  direct  consequences  of  the  failure  to  fulfill  the  agreement. 
From  this  practice  it  would  take  but  a  single  step  to  maintain  that  the  breach 
of  a  contract  concluded  with  an  alien  is  capable  of  being  regarded  as  itself  a 
denial  of  justice.  What  probably  restrains  the  United  States  from  so  doing,  is 
recognition  of  the  fact  that  in  well-ordered  countries  opportunities  for  redress 
through  judicial  channels  render  more  and  more  infrequent  the  necessity  for 
the  plea  that  justice  cannot  be  obtained  through  the  exhaustion  of  local 
remedies,  rather  than  a  belief  that  a  breach  of  contract  is  not  reprehensible 
or  beyond  the  reasonable  cognizance  of  the  State  of  the  promisee. 

1  In  the  case  of  R.  H.  May  v.  Guatemala,  submitted  to  arbitration  under 
protocol  of  Feb.  23,  1900,  it  was  agreed  that  the  issues  were  in  part  whether 
the  claimant  was  entitled  to  moneys  under  certain  contracts  between  himself 
and  the  Government  of  Guatemala,  as  well  as  for  damages  alleged  to  have 
been  caused  him  by  military  and  civil  authorities  of  that  State.  The  learned 
Umpire,  Mr.  G.  Jenner,  allowed  the  claimant  as  a  portion  of  his  award, 
$41,588.83  gold,  "being  the  estimated  amount  of  profits  he  would  have  earned 
if  he  had  been  allowed  to  carry  on  the  contract  of  April  5,  1898,  until  the  con- 
clusion of  the  term  fixed  by  that  instrument."     For.  Rel.  1900,  659,  674. 

See  position  of  the  United  States  in  1897,  concerning  Ozama  Bridge  Claim 
V.  The  Dominican  Republic  and  the  report  and  decision  of  Mr.  Alfred  Noble, 
an  engineer,  to  whom  the  question  as  to  the  value  of  the  structure  was  referred. 
For.  Rel.  1898,  274-291,  Moore,  Dig.,  VI,  729-730  ;  Claim  of  John  D.  Metzger 
&  Co.  V.  Haiti,  protocol  of  agreement  for  arbitration,  and  award  of  Hon. 
William  R.  Day,  Arbitrator,  For.  Rel.  1901,  262-276;  Mr.  Root,  Secy,  of 
State,  to  Mr.  Russell,  American  Minister,  Feb.  28,  1907,  concerning  pending 
claims  v.  Venezuela,  For.  Rel.  1908,  774  ;  agreement  with  Venezuela  of  Feb.  13, 
1909,  for  adjustment  by  arbitration  of  certain  claims  of  American  citizens 
against  that  country.  Am.  J.,  Ill,  Supp.,  224,  Malloy's  Treaties,  II,  1881 ; 
Delagoa  Bay  Railway  Arbitration,  especially  protocol  of  June  13,  1891,  Mal- 
loy's Treaties,  II,  1460,  and  opinion  of  MM.  Lvon-Caen  and  Renault  in  be- 
half of  the  claimants,  Moore,  Arbitrations,  II,  1895-1896 ;  Award  of  the  Arbi- 
trators, For.  Rel.,  1900,  903. 

Cf.  Mr.  Knox,  Secv.  of  State,  to  Mr.  Russell,  Minister  to  Persia,  Dec.  1, 
1911,  respecting  the  contractual  claims  of  Mr.  W.  Morgan  Shuster  and  his  as- 
sociates, against  Persia,  For.  Rel.  1911,  685.  See,  also,  Clement  L.  Bouve, 
"Russia's  Liability  in  Tort  for  Persia's  Breach  of  Contract",  ^4???.  J.,  VI,  389. 

2  Ralston,  Umpire,  in  Martini  Case,  Italian-Venezuelan  Commission,  1903, 
Ralston's  Report,  819,  84.3-845  ;  Bainbridge,  Commissioner,  in  de  Garmendia 
Case,  American-Venezuelan  Commission,  1903,  id.,  10,  12;  also  Memoran- 
dum of  Sir  N.  J.  Hannen,  Arbitrator  in  the  Cheek  Case  (Estate  of  Marion 
A.  Cheek,  deceased),  against  Siam,  March  21,  1898,  Moore,  Arbitrations, 
V.  ,5069,  .5071-5072. 

^  Opinion  of  Sir  Henrv  Strong  and  Hon.  Don  M.  Dickinson  in  Salvador 
Commercial   Company  Case  v.  Salvador,  For.  Rel.  1902,  862,  872;    Bain- 

550 


THE  CALVO  CLAUSE  [§  305 

When  a  denial  of  justice  accompanies  the  breach  of  a  contract 
the  duty  to  withhold  interposition  is  not  necessarily  to  be  disre- 
garded. The  cases  oftentimes  indicate,  however,  that  the  act 
deemed  to  be  internationally  illegal  is  itself  either  an  abuse  of 
the  local  judicial  system,  or  a  sure  token  that  redress  is  not  ob- 
tainable through  domestic  channels.^  In  such  instances  the  pro- 
priety of  interposition  is  not  influenced  by  the  contractual  rela- 
tionship between  the  aggrieved  citizen  and  the  foreign  State ; 
and  justification  is  to  be  found  in  the  applicability  of  those  gen- 
eral principles  of  procedure  which  always  project  themselves 
whenever  a  State  is  called  upon  to  espouse  the  cause  of  its  na- 
tionals and  to  demand  redress  in  their  behalf. 


(3) 
§  305.   The  Calvo  Clause. 

The  presence  in  a  contract  between  an  American  citizen  and 
a  Latin-American  State,  of  the  so-called  Calvo  clause,^  providing  , 
in   substance   that  any   controversy  arising  from  or  connected  , 
with  the  agreement  shall  be  decided  by  the  local  courts,  and  shall  , 
in  no  event  be  the  cause  of  international  reclamation,  has  not 
deterred  the  United  States  from  interposition  when  such  action 
has  been  deemed  by  it  to  be  justifiable  and  necessary,^     If  the 
territorial  sovereign  commits  an  internationally  illegal  act  indi- 
cating thereby  a  denial  of  justice,  as  well  as  a  breach  of  promise 
not  so  regarded,  the  provisions  of  the  clause  in  question  are  ob- 
viously indecisive  of  the  propriety  of  interposition.'*     Considering, 
however,  the  mere  contractual  delinquency   as  a  source  of  con- 
bridge,  Commissioner,  in  Rudloff  Case,  American-Venezuelan  Commission, 
1903,  Ralston's  Report,  183,  198;    Ralston,  Umpire,  in  Oliva  Case,  Italian- 
Venezuelan  Commission,  id.,  779-781. 

'  See,  for  example,  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  American 
Minister,  Feb.  28,  1907,  concerning  the  claims,  respectively,  of  the  New 
York  &  Bermudez  Co.,  and  of  the  Orinoco  Corporation  against  Venezuela, 
For.  Rel.  1908,  774,  793,  796. 

2  Charles  Calvo,  Int.  Law,  5  ed.,  I,  §  205.  See,  also,  A.  S.  Hershey,  "The 
Calvo  and  Drago  Doctrines",  Aiti.  J.,  I,  26;  discussion  in  E.  M.  Borchard, 
Diplomatic  Protection,  §§371-373;  Memorandum  of  the  Solicitor  of  the 
Dept.  of  State,  concerning  wrongs  done  American  citizens  by  the  Govern- 
ment of  Venezuela,  Senate  Doc.  No.  413,  60  Cong.,  1  Sess.,  116. 

3  See,  for  example,  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  American 
Minister,  concerning  the  Critchfield  Claim  (United  States  &  Venezuela  Co.), 
against  Venezuela,  Feb.  28,  1907,  For.  Rel.  1908,  774,  796. 

4  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Scott,  Minister  to  Venezuela,  No. 
118,  June  23,  1887,  MS.  Inst.  Venezuela,  III,  574,  Moore,  Dig.,  VI,  725. 
Note  the  application  of  this  principle  by  Plumley,  Umpire,  in  Selwyn's  Case, 
British-Venezuelan  Commission,  1903,  Ralston's  Report,  322,  Moore,  Dig., 
VI,  308. 

551 


§305]  RIGHTS  AND   DUTIES   OF   JURISDICTION 

troversy,  it  is  submitted  that  a  State  cannot  with  reason  pronounce 
void  a  contract  with  an  alien,  and  simultaneously  demand  that 
a  question  as  to  its  interpretation  or  performance  be  adjusted 
according  to  provisions  derived  from  the  agreement  itself.^  Nor 
is  it  believed  that  by  voluntary  agreement  with  a  foreign  State 
a  national  can  deprive  his  own  country  of  any  right  to  protect 
him  which  it  may  otherwise  possess.^ 

Possibly  a  contract  providing  that  nothing  relating  to  the 
agreement  shall  be  made  the  subject  of  international  reclamation 
until  after  the  exhaustion  of  local  judicial  remedies,  may  be  looked 
upon  as  declaratory  of  a  sound  principle  of  procedure  applicable 
to  the  case  of  a  purely  contractual  wrong  where  no  denial  of 
justice  is  apparent.  Such  an  adjustment  expresses  no  attempt 
to  oust  a  foreign  State  of  its  right  of  interposition  if  the  contrac- 
ing  sovereign  fails  to  perform  its  acknowledged  duty  of  juris- 
diction. Such  an  agreement  could  not,  however,  prevent  the 
State  of  the  contracting  citizen  from  including  any  claim  arising 
from  the  contract,  even  though  not  based  upon  a  denial  of  justice, 
within  the  scope  of  the  operation  of  a  claims  convention.  Not- 
withstanding some  divergence  of  views,  the  weight  of  judicial 
opinion  sanctioned  by  the  decision  in  the  case  of  the  Orinoco 
Steamship  Company  before  the  Tribunal  assembled  at  the  Hague, 
under  the  convention  between  the  United  States  and  Venezuela,  of 
February  13,  1909,  appears  with  reason  to  regard  an  agreement 
to  arbitrate  as  a  renunciation  of  any  clause  in  the  contract  re- 
stricting or  forbidding  diplomatic  reclamation.^ 

1  Opinion  of  Little,  American  Commissioner,  in  case  of  Day  and  Garrison, 
executors,  No.  38,  American- Venezuelan  Commission,  Convention  of  Dec.  5, 
1885,  Moore,  Arbitrations,  IV,  3564;  Moore,  Dig.,  VI,  301 ;  Mr.  Blaine,  Secy. 
of  State,  to  Mr.  Loring,  Minister  to  Portugal,  Nov.  30,  1889,  Moore,  Arbi- 
trations, II,  1870,  Moore,  Dig.,  VI,  297 ;  Case  of  North  and  South  American 
Construction  Company  v.  Chile,  No.  7,  American-Chilean  Commission,  Con- 
vention of  Aug.  7,  1892,  Moore,  Arbitrations,  III,  2318,  Moore,  Dig.,  VI,  302 ; 
Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  American  Minister,  Feb.  28,  1907, 
For.  Rel.  1908,  774,  784-785,  796. 

2  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Buck,  Minister  to  Peru,  No.  188, 
Feb.  15,  1888,  MS.  Inst.  Peru,  XVII,  323,  Moore,  Dig.,  VI.  294 ;  Same  to  Mr. 
Hall,  Minister  to  Central  America,  March  27,  1888,  For.  Rel.  1888,  I,  134- 
137,  Moore,  Dig.,  VI,  295;  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Par- 
tridge, Minister  to  Venezuela,  July  26,  1893,  For.  Rel.  1893,  734,  Moore,  Dig., 
yi,  299.  See,  also,  dissenting  opinion  of  Little,  American  Commissioner 
in  Case  of  Henry  Woodruff  and  that  of  Flannagan,  Bradley  &  Co.,  No.  20  and 
No.  25,  American- Venezuelan  Commission,  Dec.  5,  1885,  Moore,  Arbitrations, 
3566,  ^"oore,  Dig.,  VI,  303  ;  Ralston,  Umpire,  in  the  Martini  Case,  Itahan- 
Venezuelan  Commission,  1903,  Ralston's  Report,  840-841,  Moore,  Dig., 
VI,  308;  Senate  Doc.  No.  413,  60  Cong.,  1  Sess.,  116. 

'  J.  B.  Scott,  Higue  Court  Reports,  228,  Am.  J.,  V,  230,  233.  Concerning 
the  decision  in  its  relation  to  the  Calvo  clause,  see  W.  C.  Dennis,  "The  Orinoco 
Steamship  Company  Case  before  The  Hague  Tribunal  ",  id.,  V,  35,  50-51. 

552 


SCOPE    OF   AMERICAN    CLAIMS    CONVENTIONS    [§  306 


(4) 

§  306.  The  Scope  of  Claims  Conventions  to  Which  the 
United  States  Has  Been  a  Party. 
The  earliest  agreements  of  the  United  States  for  the  adjust- 
ment by  arbitration  of  claims  of  American  citizens  did  not  em- 
brace those  arising  from  contracts  with  foreign  governments.  V 
Art.  VII  of  the  Jay  Treaty  with  Great  Britain  of  November  19, 
1794,  provided  for  cases  arising  from  the  "irregular  or  illegal 
captures  or  condemnations  of  vessels  and  other  property."^ 
Art.  XXI  of  the  treaty  with  Spain  of  October,  27,  1795,  provided 
for  the  arbitration  likewise  of  differences  arising  from  losses  sus- 
tained by  American  citizens  in  consequence  of  the  taking  of 
their  vessels  and  cargoes  by  Spanish  authorities  during  the  war 

Also  opinion  of  Ralston,  Umpire,  in  the  Martini  Case,  Italian-Venezuelan 
Commission,  1903,  Ralston's  Report,  840-841 ;  opinion  of  Plumley,  Um- 
pire, in  Selwyn's  Case,  British-Venezuelan  Commission,  1903,  id.,  322 ;  Coro 
and  La  Vela  Railway  and  Improvement  Company  Case,  American-Vene- 
zuelan Commission,  1903,  Morris'  Report,  69 ;  Virgilio  del  Genovese  Case, 
before  same  Commission,  id.,  397,  Ralston's  Report,  174 ;  opinion  of  Barge, 
Umpire,  in  Case  of  the  Rudloffs,  before  same  Commission,  Morris'  Report, 
431,  Ralston's  Report,  182. 

Compare  opinions  of  Barge,  Umpire,  in  the  following  cases  before  the 
American- Venezuelan  Commission,  1903 ;  Henry  Woodruff,  Ralston's  Re- 
port, 151,  158;  Orinoco  Steamship  Company,  id.,  83,  90-91;  Geo.  Turn- 
bull,  id.,  200,  239. 

For  an  excellent  discussion  of  the  foregoing  and  other  decisions,  see  Moore, 
Dig.,  VI,  301-309 ;   also  Ralston,  Arbitral  Law,  34-44. 

1  Malloy's  Treaties,  I,  596.  The  instructions  of  Mr.  Randolph,  Secy,  of 
State,  to  Mr.  Jay,  show  that  the  United  States  sought  merely  a  means  of  re- 
dress respecting  claims  arising  from  acts  deemed  to  have  been  internationally 
illegal  because  committed  by  British  authorities  pursuant  to  certain  Orders 
in  Council  of  1793,  in  disregard  of  what  were  believed  to  have  been  the  rights 
of  the  United  States  as  a  neutral  during  the  war  between  France  and  Eng- 
land. Communication  of  May  6,  1794,  Am.  State  Pap.,  For.  Rel.  I,  472  ;  see, 
also,  Mr.  Jay's  representation  to  Lord  Grenville,  July  30,  1794,  id.,  481 ;  and 
the  reply  thereto  of  the  latter,  Aug.  1,  1794,  id.  It  may  be  observed  that  the 
Article  agreed  upon  contained  the  interesting  provision  that  adjustment  by 
arbitration  should  embrace  "all  such  cases,  where  adequate  compensation 
cannot,  for  whatever  reason,  be  now  actually  obtained,  had,  and  received  by 
the  said  merchants  and  others,  in  the  ordinary  course  of  justice."  In  his 
report  to  the  Secretary  of  State  of  Nov.  19,  1794,  accompanying  the 
treaty,  Mr.  Jay  declared  that  it  was  "very  much  to  be  regretted  that  a  more 
summary  method  than  the  one  indicated  in  the  seventh  Article  could  not 
have  been  devised  and  agreed  upon  for  settling  the  capture  cases."  Id., 
I,  503.  Concerning  the  arbitration  pursuant  to  this  Article,  see  Moore,  Ar- 
bitrations, I,  299-349. 

See,  also.  Art.  VI  of  the  Jay  Treaty,  with  reference  to  the  provision  made 
for  the  adjustment  of  claims  of  British  subjects  arising  from  the  "operation 
of  various  lawful  impediments  since  the  peace",  interfering  with  the  recovery 
and  lessening  of  the  value  of  debts  contracted  with  American  citizens.  Mal- 
loy's Treaties,  I.  594.  Concerning  the  failure  of  the  arbitration,  and  the  final 
adjustment  pursuant  to  the  Convention  of  Jan.  8,  1802,  see  Moore,  Arbi- 
trations, I,  271-298. 

553 


§306]         RIGHTS   AND   DUTIES   OF   .JURISDICTION 

between  France  and  Spain. ^  The  claims  convention  with  Spain 
of  August  11,  1802,  provided  for  the  adjustment  of  claims  arising 
from  the  "excesses  committed  during  the  late  war  by  individuals, 
of  either  nation,  contrary  to  the  law  of  nations  or  the  treaty  exist- 
ing between  the  two  countries."  ^  By  Art.  IX  of  the  treaty  with 
Spain  of  February  22,  1819,  known  as  the  Florida  Treaty,  there 
was  a  mutual  renunciation  of  claims,  embracing  those  mentioned 
in  the  Convention  of  1802,  as  well  as  others  based  upon  alleged 
denials  of  justice,  and  including  also  claims  in  which  interposition 
had  been  solicited  by  aggrieved  citizens  of  either  State,  and 
a  demand  for  redress  duly  preferred  upon  the  other  subse- 
quent to  the  date  of  the  convention  of  1802.^  The  United  States 
undertook  by  Art.  XI  to  make  satisfaction  to  its  own  citizens  for 
their  claims  so  renounced  to  the  amount  of  $5,000,000.  The  com- 
mission established  for  the  purpose  of  passing  upon  the  validity 
and  amount  of  American  claims,  regarded  those  of  contractual 
Vorigin  within  the  scope  of  its  jurisdiction.'^  Art.  I  of  the  claims 
convention  with  Mexico  of  April  11,  18.39,  provided  for  the  arbi- 
tration of  "all  claims  of  citizens  of  the  United  States  upon  the 
Mexican  Government",  wherein  the  interposition  of  the  United 
States  had  been  solicited  prior  to  the  signature  of  the  convention.^ 
The  Mexican  claims  commission  established  under  the  Act 
of  Congress  of  March  3,  1849,  to  pass  upon  claims  of  American 

1  Malloy's  Treaties,  II,  1648.  Concerning  the  Arbitration,  see  Moore, 
Arbitrations,  II,  991-1005. 

Mr.  Pickering,  Secy,  of  State,  in  instructions  of  Oct.  22,  1799,  to  the  Ameri- 
can plenipotentiaries  to  France,  sought  the  adjustment  by  arbitration  of 
pending  claims  embracing  all  those  "for  sums  due  to  American  citizens,  by 
contracts  with  the  French  Government  or  its  agents."  Am.  State  Pap.,  For. 
Rel.  II,  301,  .303.  By  the  Convention  of  April  30,  1803,  For  Payment  of 
Sums  Due  by  France  to  Citizens  of  the  United  States,  arrangement  was  made 
for  the  payment  of  debts  due  by  France  before  Sept.  30,  1800,  to  citizens  of 
the  United  States.  Malloy's  Treaties,  I,  513.  Relative  to  this  Convention, 
see  J.  C.  B.  Davis,  "Notes"",  Treaty  Vol.  (1776-1887)  1306-1308. 

-  Malloy's  Treaties,  II,  1650.  Concerning  the  failure  of  this  convention 
and  its  annulment  by  Art.  X  of  the  treaty  between  the  United  States  and 
Spain,  of  Feb.  22,  1819,  see  J.  C.  B.  Davis,  "Notes",  Treaty  Vol.  (1776-1887) 
1384-1385. 

3  Malloy's  Treaties,  II,  1654. 

*  See  treatment  of  the  claim  of  R.  W.  Meade,  following  the  interpretation 
placed  upon  the  treaty  by  Mr.  J.  Q.  Adams,  Secy,  of  State,  Moore,  Arbitra- 
tions, V,  4.502-4504. 

The  Mexican  Claims  Commission,  under  Act  of  Congress  of  March  3, 
1849,  relied  upon  the  position  respecting  contractual  claims  taken  by  the 
Commission  under  the  Florida  treaty.     Id.,  1279. 

^  Malloy's  Treaties,  I,  1101.  The  provision  of  Art.  I  was  apparently 
broader  than  that  of  the  preamble  of  the  Convention  which  referred  to  the 
desire  of  the  contracting  parties  to  terminate  discussions  respecting  claims 
"arising  from  injuries  to  the  persons  and  property  of  citizens  of  the  United 
States." 

554 


SCOPE  OF  AMERICAN  CLAIMS  CONVENTIONS     [§  306 

citizens  against  Mexico  (which,  pursuant  to  the  Treaty  of  Guada- 
lupe-Hidalgo, the  United  States  itself  undertook  to  pay  to  the 
amount  of  three  and  a  quarter  millions  of  dollars),  was  to  be  guided 
by  the  principles  of  an  unratified  convention  of  November  20, 
1843.^    Art.  I  of  the  latter  embraced  "all  claims"  of  citizens  of 
the  United  States.     This  commission,  as  well  as  that  under  the 
convention  of  1839,  assumed  jurisdiction  over  contractual  claims,  i 
awarding  indemnities  in  cases  where  no  denial  of  justice  was   1 
apparent.     The  members  of  both    commissions   were   evidently   I 
of  opinion  that  in  view  of  the  jurisdiction  conferred  upon  them,   ( 
the  right  of  a  claimant  to  an  award  was  not  necessarily  dependent  ' 
upon  proof  that  any  internationally  illegal  act  had  been  committed 
by  the  Mexican  Government.^ 

Art.  I  of  the  claims  convention  with  Great  Britain  of  February  ^ 
8,  1853,  provided  for  the  arbitration  of  "all  claims  on  the  part 
of  corporations,  companies  or  private  individuals  ",  who  were 
citizens  or  subjects  respectively  of  the  contracting  States,  and 
which  had  been  presented  to  either  Government  for  its  interposition 
with  the  other  after  the  Treaty  of  Ghent  .^     No  case  based  upon  ■ 
a  contract  was  submitted  for  adjudication.     In  one  case  of  a 
quasi-contractual   nature,   compensation   was   awarded.'^    Art.  I 
of  the  claims  convention  with  New  Granada  (now  Colombia)  of  ^ 
September  10,  1857,^  and  likewise  Art.  I  of  that  with  Ecuador 
of  November  25,  1862,^  embraced  "all  claims  on  the  part  of  cor- 
porations, companies  or  individuals,  citizens  of  the  United  States. '' 
Claimants  obtamed  favorable  awards  in  contractual  claims  from  \ 
both  commissions.''    Art.  I  of  the  claims  convention  with  Peru  of 

1  9  Stat.  393.  For  the  text  of  the  treaty  of  Guadalupe-Hidalgo  of  Feb.  2, 
1848,  see  Malloy's  Treaties,  I,  1107.  Concerning  the  work  of  the  Commis- 
sion, see  Moore,  Arbitrations,  II,  1249-1286 

2  Among  the  cases  decided  by  the  Commission  under  the  Convention  of 
April  11,  1839,  see  that  of  the  Hermon,  Moore,  Arbitrations,  IV.  3425  ;  also  that 
of  Dr.  Geo.  Hunter,  id.,  3426.  Among  the  cases  decided  by  the  Commission 
under  the  Act  of  Cong,  of  March  3,  1849,  see  that  of  Wm.  S.  Parrott,  id  , 
3429 ;  that  of  Cox  and  Elkins,  id.,  3430  ;  case  of  Wm.  S.  Underbill,  id.,  3433 

3  Malloy's  Treaties,  I,  665.  Concerning  the  work  of  the  Commission 
estabhshed  pursuant  to  the  treaty,  see  Moore,  Arbitrations,  I,  391-425. 

*  Case  of  Hudson's  Bay  Co.,  No.  37,  "for  suppUes  furnished  American  vol- 
unteers raised  in  Oregon  on  the  breaking  out  of  hostilities  with  the  Indians 
and  expenditures  incurred  in  the  rescue  of  captives  from  the  Indians  prior  to 
the  organization  of  the  Territorial  Government."  Moore,  Arbitrations,  I,  423 
and  IV,  3458. 

6  Malloy's  Treaties,  I,  319.  Concerning  the  work  of  the  Commission  es- 
tablished pursuant  to  this  convention,  and  that  of  the  Commission  under  the 
Convention  with  Colombia  of  Feb.  10,  1864,  id.,  I,  321,  to  complete  the  un- 
finished work  of  the  former,  see  Moore,  Arbitrations,  II,  1361-1420. 

«  Malloy's  Treaties,  I,  432.  Concerning  the  work  of  the  Commission  es- 
tablished pursuant  to  this  convention,  see  Moore,  Arbitrations,  II,  1569-1577. 

^  The  American-New  Granadian  Commission  allowed  R.  W.  Gibbs  $6952.60 

555 


§  306]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

January  12,  1863,  referred  to  "all  claims  of  citizens"  (subject  to 
certain  limitations)  of  either  State  against  the  government  of 
the  other.'  According  to  Art.  Ill  the  commissioners  were  to  be 
guided  by  "principles  of  justice  and  equity,"  as  well  as  those  of 
international  law  and  treaty  stipulations.  In  one  case  arising 
from  contract  and  exhibiting  no  sign  of  a  denial  of  justice,  an 
indemnity  was  allowed.^ 

Art.  I  of  the  claims  convention  with  Costa  Rica,  of  July  2,  1860, 
provided  for  the  adjustment  by  arbitration  of  "all  claims  of 
citizens  of  the  United  States  upon  the  Government  of  Costa 
Rica  arising  from  injuries  to  their  persons  or  damages  to  their 
property  under  any  form  whatsoever,  through  the  action  of  the 
authorities"  of  that  Republic.^  It  is  understood  that  the  com- 
mission established  pursuant  to  the  convention  allowed  compen- 
sation in  cases  of  contractual  origin.'* 

Art.  I  of  the  claims  conventions  with  Venezuela,  of  April  25, 
1866,^  and  with  Peru  of  December  4,  1868,^  followed  the  broader 
language  of  the  earlier  conventions  with  New  Granada  and 
Ecuador ;  and  both  were  similarly  construed  as  embracing  con- 
tractual claims.*^ 

Art.  I  of  the  claims  convention  with  Mexico,  of  July  4,  1868, 
provided  for  the  arbitration  of  "claims  on  the  part  of  corpora- 
tions, companies,  or  private  individuals,  citizens"  of  either  State 
"arising  from  injuries  to  their  persons  or  property  by  authorities" 

on  a  Colombian  bond  or  instrument.  Report  of  the  American  Commis- 
sioner, Moore  Arbitrations,  II  1.S84,  1385.  The  American-Ecuadorean  Com- 
mission awarded  compensation  to  Abraham  Johnson  for  balance  due  on 
shoes  sold  to  the  de  f  icl.o  government  of  General  Franco  in  1860.  Report  of 
Mr   Hassaurek,  American  Commissioner,  id.,  1575. 

^  Malloy's  Treaties,  II,  1408  Concerning  the  work  of  the  Commission  es- 
tablished pursuant  to  the  Convention,  see  Moore,  Arbitrations,  II,  1615-1638. 

2  Case  of  Thomas  R.  Eldredge,  Moore,  Arbitrations,  IV,  3460. 

^  Malloy's  Treaties,  I,  346.  Concerning  the  work  of  the  Commission 
under  this  Convention,  see  Moore,  Ar-bitrations,  II,  1551-1568. 

^  As  authority  for  this  statement  reliance  is  placed  upon  the  Brief  of  Mr. 
J.  Hubley  Ashton,  American  Agent,  in  the  Case  of  the  State  Bank  of  Hart- 
ford, before  the  Me.xican- American  Commission,  Convention  of  July  4,  1868, 
and  mentioned  by  E.  M.  Borchard,  in  "  International  Contractual  Claims  and 
Their  Settlement'',  1913,  note  No.  42. 

5  Mallov's  Treaties,  II,  1856.  The  same  language  was  employed  in  Art. 
II  of  the  Convention  of  Dec.  5,  1885,  which  superseded  that  of  April  25,  1866. 
Id.,  II,  1860.  Concerning  the  work  of  the  commissions  under  these  con- 
ventions, see  Moore,  Arbitrations,  II,  1659-1692. 

^  Malloy's  Treaties,  II,  1411.  Concerning  the  work  of  the  Commission 
under  this  Convention,  see  Moore,  Arbitrations,  II,  1639-1657. 

^  See  the  Case  of  Thomas  J.  Clark  before  the  American-Peruvian  Com- 
mission, Convention  of  Dec.  4,  1868,  Moore,  Arbitrations,  II,  1651-1652.  Also 
Case  of  Jacob  Idler,  before  the  American-Venezuelan  Commission,  Conven- 
tion of  Dec.  5,  1885,  superseding  that  of  April  25,  1866,  Moore,  Arbitrations, 
IV,  3491. 

556 


SCOPE    OF   AMERICAN   CLAIMS   CONVENTIONS     [§306 

of  the  other.^  Dr.  Francis  Lieber,  the  first  umpire  of  the  com- 
mission, awarded  compensation  in  various  claims  of  contractual 
origin.^  His  successor,  as  umpire.  Sir  Edward  Thornton,  agreed 
that  the  terms  of  the  convention  sufficed  to  give  jurisdiction  in  such 
cases.^  He  expressed  the  opinion,  however,  that  where  a  contract 
was  voluntarily  concluded  between  the  claimant  and  a  govern- 
ment authority,  it  should  be  shown  that  "gross  injustice  has  been 
done  by  the  defendant"  in  order  to  justify  an  award  against  it."* 

Art.  Xn  of  the  Treaty  of  Washington  with  Great  Britain  of 
May  8,  1871,  provided  for  the  arbitration  of  "all  claims  .  .  . 
arising  out  of  acts  committed  against  the  persons  or  property" 
of  citizens  or  subjects  of  the  contracting  States  within  a  specified 
period  of  time,  and  exclusive  of  the  so-called  Alabama  Claims.® 
One  contractual  claim  against  Great  Britain  was,  on  demurrer, 
unanimously  disallowed.^ 

According  to  paragraph  5  of  the  agreement  with  Spain  of  Feb- ' 
ruary  11-12,  1872,  for  the  adjustment  by  arbitration  of  certain 
claims  of  American  citizens,  it  was  expressly  declared  that  the  , 
arbitrators  should  "not  have  jurisdiction  of  any  demands  growing  ' 
out  of  contracts."  ^ 

Art.  I  of  the  claims  convention  with  France  of  Jan.  15,  1880, 
for  the  adjustment  by  arbitration  of  claims  of  citizens  of  either 
country  against  the  government  of  the  other,  referred  to  "all 
claims  on  the  part  of  corporations,  companies  or  private  individ- 
uals, citizens  of  the  United  States  [and  conversely  of  Francel, 
arising  out  of  acts  committed  against  the  persons  or  property" 
of  such   individuals,   and   subject  to   certain   limitations.^    The 

1  Malloy's  Treaties,  I,  1128.  Concerning  the  important  and  successful 
work  of  the  Commission  under  this  Convention,  see  Moore,  Arbitrations, 
II,  1287-1359. 

2  See,  for  example,  Case  of  Manasse  &  Co.,  Moore,  Arbitrations,  IV,  3462; 
Case  of  Iturria,  id.,  3464.     Compare  case  of  Thore  de  Lespes,  id.,  3466. 

3  Case  of  Heirs  of  John  M.  De  Witt,  id.,  3466. 
« Chas.  H.  Pond  Case,  id.,  3467. 

5  Malloy's  Treaties,  I,  700,  705.  Concerning  the  work  of  the  Commission 
under  this  treaty,  see  Moore,  Arbitrations,  I,  682-702.  The  Report  of  Robert 
S.  Hale,  Agent  and  Counsel  of  the  United  States,  forms  Vol.  Ill  of  For.  Rel. 
1873. 

« Case  of  W.  W.  Hubbell  against  Great  Britain,  No.  17,  Hale's  Report, 
For.  Rel.  1873,  III,  40,  Moore,  Arbitrations,  IV,  3484.  Among  the  grounds 
for  demurrer  it  was  alleged,  first,  that  contractual  claims  were  outside  of  the 
scope  of  the  treaty,  and  secondly,  that  if  they  were  within  its  scope,  "the 
claimant  could  have  no  standing  before  the  commission  as  an  international 
tribunal  until  he  had  exhausted  the  remedies  in  all  the  courts  of  Great  Britain, 
and  until  justice  had  been  denied  him  by  such  tribunals  in  re  minime  dubia." 

7  Malloy's  Treaties,  II,  1663. 

8  Malloy's  Treaties,  I,  535.  536.  Concerning  the  work  of  the  Commission 
under  this  Convention,  see  Moore,  Arbitrations,  II,  1133-1184. 

557 


§306]         RIGHTS   AND   DUTIES   OF  JURISDICTION 

commission  established  under  tliis  convention  exercised  jurisdic- 
tion over  contractual  claims ;  in  two  cases  of  that  character,  the 
claims  were  disallowed  following  an  adjudication  on  their  ijierits.^ 
Art.  II  of  the  claims  convention  with  Venezuela,  of  Dec.  5, 
1885,  like  Art.  I  of  that  of  April  25,  1866,  which  it  superseded, 
referred  to  "all  claims  ...  of  citizens  of  the  United  States," 
subject  to  certain  limitations.^  Jurisdiction  over  contractual 
claims  was  assumed  by  the  commission.^  Art.  I  of  the  claims 
convention  with  Chile  of  August  7,  1892,  like  Art.  I  of  that  with 
France,  of  January  15,  1880,  referred,  subject  to  certain  limita- 
tions, to  "all  claims  ...  of  citizens,  arising  out  of  acts  com- 
mitted against  the  persons  or  property"  of  such  individuals,* 
and  the  commission  established  pursuant  to  the  convention  like- 
wise exercised  jurisdiction  over  contractual  claims.^  Art.  I  of 
the  claims  convention  with  Venezuela,  of  February  17,  1903, 
made  provision  for  the  arbitration  (subject  to  certain  limita- 
tions) of  "all  claims"  of  American  citizens.^  The  commission 
established  thereunder  was  not  reluctant  to  accept  jurisdiction 
over  contractual  claims.^ 

^  Case  of  S.  L.  M.  Barlow,  assignee,  No.  18,  Moore,  Arbitrations,  IV,  3486; 
and  case  of  William  H.  Frear,  No.  9,  id.,  3488. 

2  Malloy's  Treaties,  II,  1860  and  1856.  Concerning  the  work  of  the  Com- 
mission under  Convention  of  1885,  and  as  interpreted  and  extended  in  opera- 
tion by  Conventions  of  March  15,  1888,  and  Oct.  5,  1888,  respectively,  see 
Moore,  Arbitrations,  II,  1674-1692. 

'  In  the  important  case  of  Jacob  Idler,  although  growing  out  of  contract, 
the  Commission  found  a  denial  of  justice,  in  the  effect  of  certain  judicial  de- 
cisions of  the  Venezuelan  Courts,  which  the  Government  had  invoked.  See 
Moore,  Arbitrations,  IV,  3491,  3515-3524. 

See,  also,  the  Case  of  John  Donnell's  Executor,  id.,  3545;  Case  of  Beales, 
Nobles  and  Garrison,  id.,  3548-3564  (disallowed) ;  Case  of  Flannagan,  Brad- 
ley, Clark  &  Co.,  id.,  3564  (disallowing  claim  because  of  failure  of  claimant  to 
observe  terms  of  agreement  providing  for  the  adjudication  of  issues  respect- 
ing the  contract  before  Venezuelan  courts,  and  expressly  declaring  that  no 
matter  connected  with  the  contract  should  be  made  the  subject  of  inter- 
national reclamation).  See  dissenting  opinion  of  Little,  Commissioner,  in  the 
last-named  case,  id.,  3566;  Case  of  Thomas  U.  Walter,  id.,  3567.  Compare 
quasi-contractual  cliim  of  Richard  O'Dwyer,  which  was  disallowed,  id.,  3568. 

*  Malloy's  Treaties,  I,  185.  Concerning  the  work  of  the  Commission 
under  this  Convention,  see  Moore,  Arbitrations,  II,  1469-1484,  and  documents 
there  cited. 

^  See  decision  on  the  demurrer  of  the  United  States  in  the  case  of  R.  L. 
Trumbull,  No.  27,  Moore,  Arbitrations,  IV,  3569,  3570. 

6  Malloy's  Treaties,  II,  1870. 

^  Case  of  Boulton,  Bliss  &  Dallett,  Morris'  Report,  105,  Ralston's  Re- 
port, 26. 

"Many  cases  of  contract  between  foreigners  and  the  government  of  Vene- 
zuela were  received  by  the  Venezuelan  commissions  of  1903  and  acted  upon 
without  any  objection  being  raised  to  their  nature,  and  without  any  hesitancy 
on  the  part  of  the  commissions,  and  this  where  such  contracts  were  voluntarily 
entered  into,  and,  even  as  we  shall  see,  where  they  were  merely  implied."  Ral- 
ston, Arbitral  Law,  29. 

558 


PUBLIC    BONDS  [§  307 

The  Special  Ag/eement  between  the  United  States  and  Great 
Britain  of  August  18,  1910,  for  the  submission  to  arbitration  of 
outstanding  pecuniary  claims,  made  provision  in  Class  IV  of  the 
schedule  of  claims  appended  thereto,  for  the  reference  of  "claims 
based  on  contracts  between  the  authorities  of  either  government 
and  the  nationals  of  the  other  government."  ^ 

From  the  language  of  the  foregoing  agreements  of  the  United: 
States,  it  must  be  apparent  that  it  is  disposed  both  to  seek  and. 
permit  the  adjustment  by  arbitration  of  contractual  claims  of . 
American  citizens  against  foreign  governments,  as  well  as  those 
of  citizens  of  foreign  States  against  itself.  Arbitrators  have, 
moreover,  not  hesitated  to  interpret  broadly  the  scope  of  the  juris- 
diction conferred  upon  them.  When  jurisdiction  has  been  accepted 
in  a  contractual  case,  the  issue  has  usually  been  deemed  to  be 
whether  a  contractual  obligation  was  violated  by  the  respondent, 
and  also  whether,  on  the  merits  of  the  case,  the  contracting  citizen 
was  entitled  to  compensation.  Thus  commissions  and  umpires 
have  rarely  deemed  the  issue  to  be  whether  a  breach  of  contract 
constituted  a  denial  of  justice.  Apart  from  any  question  as  to 
the  correctness  of  the  interpretation  placed  by  Sir  Edward  Thorn- 
ton upon  the  claims  convention  with  INIexico  of  July  4,  1868,  the 
unwillingness  of  that  umpire  to  award  compensation  in  contractual 
cases  except  upon  evidence  of  "flagrant  injustice"  is  indicative  of 
an  opinion  entitled  to  respect,  that  the  mere  breach  of  a  con- 
tractual duty  was  nc5t  necessarily  decisive  of  the  commission  of 
internationally  illegal  conduct. 

(5) 
§  307.   Public  Bonds. 

A  State  which  validly  issues  a  bond  formally  agrees  to  pay  a 
fixed  sum  in  the  shape  of  principal  and  interest  at  specified  times 
to  whatsoever  person  comes  within  the  tenor  of  the  contract.  An 
alien  may  come  therein  by  the  purchase  of  such  an  instrument.^ 

1  Charles'  Treaties,  50,  55.  According  to  paragraph  III  of  the  "Terms 
of  Submission"  it  was  provided  that:  "The  Arbitral  Tribunal  shall  take 
into  account  as  one  of  the  equities  of  a  claim  to  such  extent  as  it  shall  con- 
sider just  in  allowing  or  disallowing  a  claim,  in  whole  or  in  part,  any  failure 
on  the  part  of  the  claimants  to  obtain  satisfaction  through  legal  remedies 
which  are  open  to  him  or  placed  at  his  disposal,  but  no  claim  shall  be  disal- 
lowed or  rejected  by  application  of  the  general  principle  of  international  law 
that  the  legal  remedies  must  be  exhausted  as  a  condition  precedent  to  the 
validity  of  the  claim." 

2  If  the  principles  of  private  law  applied  by  American  Courts  in  the  cases 
respecting  bonds  of  municipal  corporations  afford  guidance  when  the  obligor 
is  a  State  and  the  obligee  an  alien,  the  agreement  signifies  also  that  the  obligor 

559 


§  307]  RIGHTS   AND    DUTIES    OF   JURISDICTION 

The  formality  of  the  undertaking,  the  precision  of  its  terms,  the 
absence  of  any  duty  on  the  part  of  the  obHgee  to  take  any  steps 
to  secure  payment  other  than  to  present  the  bond  itself  or  its 
coupons,  appear  to  place  the  obligee  in  a  unique  position  with 
respect  to  the  contracting  State. 

Dr.  Luis  M.  Drago  of  the  Argentine  Republic,  the  distinguished 
author  of  the  doctrine  that  bears  his  name,^  has  urged  that  bonds 
constitute  an  exceptional  class  of  obligations ;  first,  because  they 
are  issued  by  the  sovereign  power  of  the  State  pursuant  to  legisla- 
tion ;  secondly,  because  they  are  made  payable  to  bearer  ;  thirdly, 
because  the  purchaser  buying  the  bonds  in  the  open  market  ac- 
quires his  rights  as  obligee  without  other  formality  or  relation 
with  the  debtor  government ;  and  fourthly,  because  when  pay- 
ment is  for  any  reason  suspended,  there  is  no  means  of  appeal 
by  judicial  action  or  otherwise  to  the  debtor  State,  inasmuch  as 
the  suspension  of  payment  occurs  by  virtue  of  the  sovereign 
authority  of  the  State  manifested  jiire  imperii.^ 

It  is  not  perceived  how  the  process  by  which  a  State  validly 
issues  a  bond,  or  the  functions  of  government  exercised  in  order 
to  accomplish  that  end,  affect  the  rights  of  the  obligee  or  of  his 
State  in  case  of  default.  Nor  does  the  broad  tenor  of  the  agree- 
ment, or  the  method  whereby  an  alien  lawfully  enters  into  the 
contractual  relationship  with  the  obligor,  offer  a  solid  basis  of 
distinction. 

§  308.    The  Same. 

^  On  principle,  the  failure  of  a  debtor  State  to  perform  its  promise 
with  respect  to  a  bond-holder  —  the  bare  nonfeasance  —  differs 
nowise  from  the  failure  to  observe  an  agreement  with  a  promisee 
expressed  in  any  other  form  or  concluded  by  any  other  process. 
If  a  mere  contractual  delinquency  is  not  regarded  as  internationally 
illegal  conduct,  the  propriety  of  interposition  would  in  such  case 
appear  to  depend  solely  upon  whether,  apart  from  the  breach  of 

sv contract,  the  obligor  has  committed  a  denial  of  justice  manifest 
in  an  act  generally  regarded  as  such.  When,  therefore,  the  de- 
will  set  up  no  equitable  defense  against  a  purchaser  for  value  and  without 
notice,  prior  to  any  default  in  payment  of  the  instrument.  See  John  F.  Dillon, 
Municipal  Corporations,  5  ed.,  §§871  and  931,  and  authorities  there  cited, 
especially  Mercer  County  v.  Hackett,  1  Wall.  82. 

1  The  so-called  Drago  Doctrine  was  expressed  in  a  note  of  Dr.  Drago,  Min- 
ister of  Foreign  Relations  of  the  Argentine  Republic,  to  Seiior  Merou,  Argen- 
tine Minister  at  Washington,  Dec.  29,  1902,  For.  Rel.  1903,  1-5. 

2  Luis  M.  Drago,  "State  Loans  in  Their  Relation  to  International  Policy", 
Am.  J.,  I,  692. 

560 


PUBLIC  BONDS  [§  308 

fault  is  not  the  result  of  an  act  depriving  the  obligee  of  an  ade-" 
quate  remedy  in  the  local  courts,  the  opportunity  for  an  adjudica- 
tion before  a  domestic  tribunal  to  which  the  obligor,  as  in  any 
other  contractual  controversy,  is  amenable,  should  serve  to  re- 
tard interposition  until  after  the  exhaustion  of  local  remedies. 
In  the  United  States  the  alien  obligee  is,  in  such  cases,  not  neces-  v 
sarily  without  a  remedy  in  the  Court  of  Claims.^ 

Oftentimes,  however,  the  default  of  the  obligor  is  accomplished  | 
through  the  exercise  of  sovereign  power  expressed  by  legislation,  | 
which  serves  to  suspend  payment  or  to  modify  the  agreement  [ 
with  the  bondholder,  and  also  operates  directly  as  a  repudiation ' 
of  the  contract.^     The  act  of  repudiation  appears  to  differ  sharply 
from  the  mere  non-performance  of  the  obligor's  promise,  as  it 
places  the  State  beyond  the  jurisdiction  of  its  own  courts,  inas-'' 
much  as  the  sovereign  acting  as  such  does  not  permit  the  pro- 
priety of  its  conduct  to  be  questioned  by  any  domestic  authority 
or  according  to  any  test.^     This  fact  renders  any  issue  raised  by  an  ^ 

1  "The  fact  is  that  the  right  to  sue  on  the  bonds  issued  by  States  is  gen- 
erally allowed.  Action  in  contract  to  recover  principal  or  interest,  due  and 
unpaid,  may  be  brought  on  the  United  States  bonds  in  the  Court  of  Claims, 
or  a  mandamus  may  issue  to  the  Secretary  of  the  Treasury,  under  existing 
law,  to  compel  him  to  pay  the  interest  on  United  States  bonds  due  and  un- 
paid."    G.  W.  Scott,  Am.  J.,  II,  78,  91. 

See  §  145  of  the  Judicial  Code,  36  Stat.  1136,  U.  S.  Comp.  Stat.  1918,  §  1136, 
indicating  the  scope  of  the  jurisdiction  of  the  Court  of  Claims. 

2  That  this  power  is  exercised  more  frequently  to  lighten  the  burden  under- 
taken with  respect  to  alien  bondholders  than  with  respect  to  alien  promisees 
under  private  contracts  with  the  State  is  common  knowledge.  Neverthe- 
less, whenever  the  power  is  exercised,  the  alien  promisee,  whatsoever  be  the 
form  of  the  obligation,  finds  himself  impotent  to  obtain  an  adjudication 
against  the  State  on  the  merits  of  the  claim.  The  United  States  Court  of 
Claims  is  committed  to  the  doctrine  that  in  a  suit  on  a  contract  against  the 
United  States,  the  court  cannot  pass  upon  the  lawfulness  of  sovereign  acts 
tending  to  change  the  contractual  dutv  towards  the  promisee.  Deming  v. 
United  States,  1  Ct.  CI.  190 ;  Jones  ;-.  United  States,  1  Ct.  CI.  383 ;  Wilson 
V.  United  States,  11  Ct.  CI.  513.  See,  also,  concerning  these  cases,  G.  W. 
Scott  in  Ato.  /.,  II,  78,  91-92;  also  Edwin  M.  Borchard,  "International  Con- 
tractual Clainas  and  Their  Settlement",  Baltimore,  1913,  52. 

'  Dr.  Drago  asserts  that  where  the  obligor  State  by  virtue  of  its  sovereign 
authority  suspends  payment  or  modifies  its  agreement  "there  is  not  and 
cannot  be  any  'denial  of  ju.stice'  because  not  only  does  there  not  exist  a  tri- 
bunal competent  to  bring  action  against  the  debtor  State,  but  it  is  impossible 
evgn  hypothetically  to  conceive  of  such  a  tribunal."  Am.  J.,  I,  692,  697. 
If  the  distinguished  statesman  intends  to  convey  the  idea  that  a  denial  of 
justice  must  be  confined  to  the  acts  of  the  judicial  department  he  fails  to  rec- 
ognize the  practice  that  commonly  regards  a  State  as  capable  of  comniitting 
internationally  illegal  conduct  through  any  agency  of  government.  If  in  a 
particular  case  the  exercise  of  sovereign  power  causing  the  repudiation  of  a 
contract  is  not  to  be  regarded  as  a  denial  of  justice,  it  is  not  because  the 
judicial  department  of  the  obligor  State  is  freed  from  the  possibility  of  itself 
committing  an  internationally  illegal  act. 

The  substance  of  Dr.   Drago's  argument  is  that  the  repudiation  of  the'v 
contract  of  the  obligor  (although  it  is  not  said  that  the  contract  is  repudiated)  / 

VOL.  V  — 36  561 


§  308]  RIGHTS   AND    DUTIES    OF   JURISDICTION 

,  alien  obligee  or  by  his  State,  justiciable  solely  before  an  inter- 
national court.^      Under  such   circumstances   interposition  does 
t  not  lack  justification,  because  the  alien  obligee,  or  his  State  in 
\his  behalf,  has  the  right  to  demand  an  adjudication  of  the  con- 
Woversy  before  a  competent  tribunal,  and  hence  the  right  also 
to  challenge  the  propriety  of  any  act  whereby  the  obligor  attempts 
to  place  itself  beyond  the  reach  of  any  court.^     This  must  be  true 
irrespective  of  the  contention  that  the  commission  of  the  act  of 
I  sovereignty  is  not  in  bad  faith.     However  influential  may  be  the 
honesty  of  the  obligor  with  respect  to  the  policy  of  the  State  of  the 
obligee,  it  has  no  bearing  upon  the  existence  or  scope  of  the  right 
of  interposition  possessed  by  the  latter.^ 

The  treatment  accorded  the  obligee  by  the  obligor  may  amount 

'  to  a  denial  of  justice.     It  is  doubtless  of  such  a  kind  when,  by 

any  process,  the  debtor  State  injures  or  destroys  or  appropriates 

property  sought  to  be  mortgaged  as  security  for  the  payment 

of  the  debt.     Such  impairment  of  the  value  of  the  right  acquired 

by  the  exercise  of  sovereign  power  removes  from  the  State  of  the  obhgee  the 

/right  to  take  steps  that  it  might  reasonably  take  if  the  obHgor  had  not  seen 

fit  to  make  use  of  its  sovereign  power.     It  ought  to  be  clear  that  the  rights  of 

1  the  obligee  and  of  his  State  depend  upon  the  consequences  of  the  conduct 

'of  the  obligor,  rather  than  upon  the  method  which  it  employs  to  rid  itself 

of  the  burdens  of  its  undertaking,  and  that  the  very  exercise  of  sovereign 

power,  by  reason  of  the  consequences  which  it  entails,  necessarily  produces 

an  international  issue,  the  solution  of  which  the  State  of  the  obligee  is  entitled 

to  demand. 

1  The  following  were  bond  claims  against  Venezuela  which  were  submitted 
to  mixed  commissions  under  conventions  of  1902  and  1903  :  Compagnie  Ge- 
nerale  des  Eaux  de  Caracas  (where  jurisdiction  accepted),  Belgian- Venezuelan 
Commission,  1903,  Ralston's  Report,  271 ;  Ballistini  Case  (where  claim  disal- 
lowed for  want  of  proof  of  ownership  of  bonds),  French- Venezuelan  Commis- 
sion, 1902,  id.,  503;  Jarvis  Case  (where  claim  disallowed,  because  the  bonds 
were  issued  in  compensation  of  services  in  support  of  an  unsuccessful  revolu- 
tion against  the  constituted  government  with  which  the  United  States  was 
at  peace),  American- Venezuelan  Commission,  1903,  id.,  145.  In  a  note 
attached  to  the  Ballistini  Case,  id.,  505,  the  compiler  says:  "In  the  Italian 
Commission  [Boccardo  Case,  not  reported]  judgment  was  givep  on  internal 
bonds  on  authority  of  Aspinwall  Case,  Moore,  p.  3610."  Concerning  the 
foregoing  cases,  see  G.  W.  Scott,  in  Am.  J.,  II,  83-84. 

2  In  this  connection  see  address  of  Mr.  Ruy  Barbosa,  a  Delegate  of  Brazil, 
before  the  First  Sub-Commission  of  the  First  Commission  at  the  Second 
Hague  Peace  Conference,  July  23,  1907,  La  Deuxieme  Conference  Internationale 
de  la  Paix,  II,  276-285.  An  abstract  is  contained  in  J.  B.  Scott,  Hague 
Peace  Conferences,  I,  411-412. 

Mr.  Sherman,  Secy,  of  State,  to  Mr.  Powell,  Minister  to  Haiti,  No.  43, 
Oct.  26,  1897,  MS.  In^t.  Haiti,  III,  582,  Moore,  Dig.,  VI,  729. 

5  As  the  defaulting  State  is  generally  ready  to  aver  that,  for  reasons  beyond 
its  control,  it  has  become  insolvent,  or  at  least  unable  to  pay  its  indebtedness, 
any  yielding  to  the  plea  that  even  the  policy  of  the  State  of  the  obligee  should 
depend  upon  the  good  faith  of  the  obligor,  offers  opportunity  and  temptation 
to  the  dishonest  debtor  to  escape  the  reasonable  burden  of  its  contract  through 
false  representations,  the  true  nature  of  which  it  may  become  impossible  to 
establish. 

562 


PUBLIC    DEBTS    COLLECTED    BY    FORCE         [§  309 

by  the  obligee  in  the  thing  hypothecated  for  his  benefit  is  essen- 
tially wrongful  and  may  be  justly  regarded  as  internationally 
illegal.^  Where  the  security  for  payment  is  the  mere  agreement 
or  pledge  of  the  obligor  that  revenues  to  be  thereafter  derived 
from  certain  specified  sources  shall  be  employed  for  that  purpose, 
it  may  be  doubted  whether  the  diversion  of  those  revenues  in 
violation  of  the  agreement  should  be  regarded  as  other  than  a 
further  contractual  delinquency,^  as  such  conduct  would  not 
affect  any  vested  right  of  the  obligee  in  any  asset  sought  to  be 
placed  beyond  the  control  of  the  obligor  for  the  benefit  of  the 
former.  The  breach  of  the  agreement  would  not  differ  essentially 
from  any  other,  and  hence  could  not  itself  with  reason  be  regarded 
as  a  denial  of  justice.  If,  however,  the  diversion  of  revenues  were 
effected  by  an  act  of  sovereignty  serving  also  as  a  repudiation  of 
the  contract,  grounds  of  interposition  would  be  as  apparent  as 
in  any  other  situation  where  the  obligor  by  similar  conduct  pro- 
duced an  issue  solely  justiciable  before  an  international  court. 

(6) 
The  Collection  of  Public  Debts  by  Force 

§  309.   The   Hague   Convention   of   1907   Respecting   the 
Limitation  of  the  Employment  of  Force. 

The  propriety  of  the  use  of  force  for  the  purpose  of  collecting 
contractual  claims  has  of  late  years  been  widely  discussed. 

In  December,  1902,  Great  Britain,  Germany  and  Italy  resorted 
to  force  against  Venezuela  by  blockading  certain  ports  of  that 
country  in  order  to  secure  recognition  and  the  means  of  payment 
of  pending  claims,  contractual  as  well  as  tortious.^  By  protocols 
signed  in  May,  1903,  there  was  submitted  to  the  Hague  Tribunal 
the  issue  whether  the  blockading  Powers  were  entitled  to  pref- 
erential treatment  in  the  payment  of  their  claims  against  Vene- 
zuela, over  the  so-called  non-blockading  claimant  Powers,  among 
which  was  the  United  States.     The  Tribunal  decided  the  issue 

1  Marquis  of  Salisbury,  British  Foreign  Secretary,  to  Senor  Pividal,  Pe- 
ruvian Minister,  Nov.  26,  1879,  Pari.  Pap.  Peru,  No.  1  (1882),  16-17,  Moore, 
Dig.,  VI,  724;   Opinion  of  Cushing,  Atty.-Gen.,  6  Ops.  Attys.-Gen.,  130. 

^  Memorandum  of  American  Peace  Commission,  Paris,  Nov.  21,  1898, 
respecting  the  Cuban  Debt,  S.  Doc.  62,  55  Cong.,  3  Sess.,  II,  198-201, 
Moore,  Dig.,  I,  381,  384. 

3  Concerning  the  claims  of  Germany,  see  Promemoria  of  the  Imperial  Ger- 
man Embassy,  Dec.  11,  1901,  For.  Rel.  1901,  192,  Moore,  Dig.,  VI.  586; 
also  For.  Rel.  1903,  429-431,  Moore,  Dig.,  VI,  589.  Relative  to  the  blockade, 
see  U.,  424,  457-458,  801. 

563 


§309]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

in  favor  of  the  blockading  Powers.^  On  December  29,  1902, 
shortly  after  the  employment  of  force.  Dr.  Drago,  Minister  of 
Foreign  Affairs  of  the  Argentine  Republic,  in  a  note  to  Mr. 
Merou,  the  Argentine  Minister  at  Washington,  for  transmission 
to  the  Department  of  State,  declared  that 

the  principle  which  she  [the  Argentine  Republic]  would  like 
to  see  recognized  is :  that  the  public  debt  can  not  occasion 
armed  intervention  nor  even  the  actual  occupation  of  the  terri- 
tory of  American  nations  by  a  European  power.^ 

Later,  as  has  been  observed,  Dr.  Drago  sought  to  point  out  a 
distinction  between  the  public  loans  of  a  State  and  other  forms 
of  its  contractual  obligations,  for  the  purpose  of  securing  approval 
of  the  idea  that  force  should  never  be  employed  in  behalf  of  foreign 
obligees  against  an  obligor  State.^ 

At  the  Second  Hague  Peace  Conference,  in  1907,  General 
Horace  Poster,  a  delegate  of  the  United  States,  offered  a  proposi- 
tion which  became  known  as  the  Porter  plan  and  which  was,  after 
amendment,  accepted  by  the  Conference  and  embodied  in  the 
Convention  respecting  the  Limitation  of  the  Employment  of 
Force  for  the  Recovery  of  Contract  Debts,  in  the  following  form  : 

1  For  the  text  of  the  Award,  see  For.  Rel.  1904,  506 ;  J.  B.  Scott,  Hague 
Court  Reports,  56.  See,  also.  Final  Report  of  W.  L.  Penfield,  Agent  of  the 
United  States,  For.  Rel.  1904,  509. 

2  Yor.  Rel.  1903,  1-5.  See,  also.  Memorandum  by  way  of  response  ac- 
companying a  note  from  Mr.  Hay,  Secy,  of  State,  to  Mr.  Merou,  the  Argen- 
tine Minister  at  Washington,  Feb.  17,  1903,  id.,  5. 

Concerning  the  Drago  Doctrine,  see  Luis  M.  Drago,  "State  Loans  in  Their 
Relation  to  International  Policy",  Am.  J.,  I,  692;  Amos  S.  Hershey,  "The 
Calvo  and  Drago  Doctrines",  id.,  I,  26;  G.  W.  Scott,  "International  Law 
and  the  Drago  Doctrine",  North  Am.  Rev.,  CLXXXVIII,  602  (1906);  "The 
Hague  Convention  Restricting  the  Use  of  Force  to  Recover  on  Contract 
Claims"  ,  Am.  J.,  II,  78;  Edwin  M.  Borchard,  Diplomatic  Protection,  §  119; 
H.  A.  Moulin,  La  Doctrine  de  Drago,  Paris  (1908) ;  S.  Perez  Triana,  La  Doc- 
trina  Drago,  Coleccion  de  Documentos,  London,  1908;  Alfredo  N.  Vivot,  La 
Doctrina  Drago,  Buenos  Aires,  1911;  BibUographv  in  Oppenheim,  2  ed.,  I, 
192;  J.  B.  Scott,  Hague  Peace  Conferences,  1/386,  392-400;  A.  Pearce 
Higgins,  The  Hague  Psace  Conferences  (1909),  184-188,  and  bibhography. 

"  It  may  be  noted  that  Drago  protests  only  against  the  use  of  armed  force 
on  the  collection  of  public  debts  and  not  directly  against  diplomatic  inter- 
position. Most  of  the  writers  who  have  discussed  the  question  have  failed  to 
note  this  distinction,  possibly  because  a  denial  of  forcible  measures  deprives 
interposition  of  its  mo^t  effective  sanction."  Edwin  M.  Borchard,  Diplo- 
matic Protection,  p.  309. 

3  Luis  M.  Drago,  "State  Loans  in  Their  Relation  to  International  Policy", 
Am.  J.,  I,  692;  also  address  of  Dr.  Drago  before  the  First  Sub-Commission 
of  the  First  Commission  of  the  Second  Hague  Peace  Conference,  July  18, 
1907,  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents,  II, 
246-251,  an  abstract  of  which  is  contained  in  J.  B.  Scott,  Hague  Peace  Con- 
ferences, I,  405-411. 

564 


THE  HAGUE  CONVENTION  OF  1907  [§  309 

The  Contracting  Powers  agree  not  to  have  recourse  to  armed 
force  for  the  recovery  of  contract  debts  claimed  from  the  Gov- 
ernment of  one  country  by  the  Government  of  another  country 
as  being  due  to  its  nationals. 

This  undertaking  is,  however,  not  applicable  when  the  debtor  ^ 
State  refuses  or  neglects  to  reply  to  an  offer  of  arbitration,  or 
after  accepting  the  offer,  prevents  any   "Compromis"   from 
being  agreed  on,  or,  after  the  arbitration,  fails  to  submit  to  the 
award.  ^ 

"While  this  language  restricts  the  use  of  armed  force  to  the  occa- 
sions specified,  it  is  significant  as  a  declaration  that  the  employ- 
ment of  such  means  of  obtaining  justice  may  not  be  improper 
when  the  obligor  State  refuses  to  arbitrate,  or  prevents  recourse 
to  arbitration,  or  fails  to  submit  to  an  award.  The  provision, 
on  the  other  hand,  that  an  offer  of  arbitration  must  precede  such 
action  on  the  part  of  the  obligee  State  is  token  of  the  general  recog- 
nition of  the  principle  that  an  international  judicial  remedy  which  \ 
is  always  available  should  be  exhausted  before  an  appeal  to  armed 
force  becomes  justifiable.  The  convention  simply  takes  into 
account  the  remediless  condition  of  the  obligee,  and  by  faciliat- 
ing  if  not  pressing  arbitration,  attempts  to  substitute  amicable 
adjustment  by  judicial  means  for  non-amicable  adjustment 
based  upon  the  use  of  force.  Moreover,  "A  debtor  State  is  pro- 
tected by  the  law  until  it  puts  itself  outside  the  law  —  that  is, 
outside  of  the  three  reasonable  reservations."  ^ 

Thus  it  would  appear  that  in  the  event  of  a  controversy,  a  debtor 
State  would,  under  the  convention,  have  the  right  to  demand 
that  the  State  of  the  obligee  enter  into  a  reasonable  agreement  to 
arbitrate,^  before  the  latter  could  justly  resort  to  force,  and  having 
so  agreed,  to  follow  the  procedure  (as  Art.  II  provides)  expressed 

1  Malloy's  Treaties.  II,  2254,  J.  B.  Scott,  Hague  Peace  Conferences,  II, 
357.  See,  also,  address  of  General  Porter,  before  the  First  Sub-Commis- 
sion of  the  First  Commission  of  the  Second  Hague  Peace  Conference,  July 
16,  1907,  Deuxieme  Conference  Internationale  de  la  Paix,  Ades  et  Documents, 
II,  229.  For  the  text  of  the  Porter  plan  as  first  presented,  id.,  II,  916,  J.  B. 
Scott,  Hague  Peace  Conferences,  II,  400.  See,  also.  Instructions  to  the  Ameri- 
can Delegates  to  the  Second  Hague  Conference  of  1907,  May  31,  1907,  For. 
Rel.  1907,  II.  1128.  1133. 

2  G.  W.  Scott,  "The  Hague  Convention  Restricting  the  Use  of  Force  to 
Recover  on  Contract  Claims",  Am.  J.,  II.  78,  80. 

^Resolution  by  the  Senate  declaring  "that  the  United  States  approves 
this  Convention  with  the  understanding  that  recourse  to  the  permanent  court 
for  the  settlement  of  the  differences  referred  to  in  said  Convention  can  be 
had  only  by  agreement  thereto  through  general  or  special  treaties  of  Arbi- 
tration heretofore  or  hereafter  concluded  between  the  parties  in  dispute." 
Malloy's  Treaties,  II,  2259. 

565 


§  309]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

in  Part  IV,  Chapter  III  of  the  Hague  Convention  of  1907,  for  the 
Pacific  Settlement  of  International  Disputes,  especially  in  the 
matter  of  arranging  the  compromis} 

In  making  provision  for  the  treatment  of  "contractual  debts" 
it  is  believed  that  the  convention  gave  expression  to  an  agree- 
ment applicable  to  all  forms  of  indebtedness  of  a  State  to  an  alien, 
embracing  without  distinction  public  loans  evidenced  by  bonds ; 
and  that  there  was  contemplated  the  adjustment  of  any  issue 
arising  from  non-payment,  whether  or  not  resulting  from  a  repu- 
diation of  its  contract  by  an  obligor  State  through  the  exercise  of 
sovereign  power.^ 

4 
EXTRADITION 

a 

§  310.   Preliminary. 

Extradition  was  defined  by  Chief  Justice  Fuller  in  the  case  of 
Terlinden  v.  Ames  to  be : 

The  surrender  by  one  nation  to  another  of  an  individual 
accused  or  convicted  of  an  offence  outside  of  its  own  territory, 
and  within  the  territorial  jurisdiction  of  the  other,  which,  being 
competent  to  try  and  punish  him  demands  the  surrender.^ 

1  See,  especially,  Art.  LIII  of  this  convention,  Malloy's  Treaties,  II,  2238. 
Also  J.  B.  Scott,  Hague  Peace  Conferences,  I,  418-420. 

2  G.  W.  Scott,  "The  Hague  Convention  Restricting  the  Use  of  Force  to 
Recover  on  Contract  Claims",  Am.  J.,  II,  78,  90-94;  J.  B.  Scott,  The  Hague 
Peace  Conferences,  I,  416-418 ;  A.  Pearce  Higgins,  The  Hague  Conferences, 
194-196;  Edwin  M.  Borchard,  International  Contractual  Claims  and  Their 
Settlement,  Baltimore,  1913,  52-53.  See,  also,  Deuxihne  Conference  Inter- 
nationale de  la  Paix,  Actes  et  Documents,  I,  553-561,  especially  the  views  ex- 
pressed by  General  Porter,  558. 

3  184  U.  S.  270,  289;  also,  Moore,  Extradition,  I,  §  1,  citing  Billot,  Traite 
de  V Extradition,  1. 

See,  generally,  John  Bassett  Moore,  Third  Assistant  Secretary  of  State, 
Report  on  Extradition,  with  returns  of  all  cases  from  August  9,  1842,  to 
January  1,  1890,  Washington,  1890;  same  author,  Extradition  and  Inter- 
state Rendition,  2  vols.,  Boston,  1891;  Moore,  Dig.,  IV,  239-424;  same 
author,  The  Difficulties  of  Extradition  (reprinted  from  pubhcations  of 
Academy  of  Political  Science,  I,  No.  4),  New  York,  1911 ;  Samuel  Thayer 
Spear,  Law  of  Extradition,  International  and  Interstate,  2  ed.,  Albany,  1884; 
John  G.  Hawley,  Law  and  Practice  of  International  Extradition,  Chicago, 
1893 ;  Extradition  of  Fugitives  from  the  United  States  in  Foreign  Juris- 
diction (Extract  from  book  of  instructions  to  court  officials),  issued  by  the 
Attornev-General,  June  1,  1916. 

See,  also,  Biron  and  Chalmers,  Law  and  Practice  of  Extradition,  London, 
1903 ;  A.  Billot,  Traite  de  V Extradition,  Paris,  1874 ;  Ludovic  Beauchet, 
Trai'e  de  I'Extradition,  Paris,  1899  ;  Paul  Bernard,  Traite  Theorique  et  Prntique 
de  r Extradition,  2  vols.,  Paris,  1890 ;  Sir  Edward  Clarke,  Law  of  Extradition, 

566 


PRELIMINARY  [§  310 

The  extradition  of  a  fugitive  from  justice  signifies  that  the  State 
within  whose  domain  he  is  found,  believes  it  to  be  preferable  that 
he  should  be  prosecuted  by  the  country  where  the  offense  was  com- 
mitted than  remain  unpunished  or  even  be  prosecuted  under 
the  laws  of  the  place  of  asylum.^  Inasmuch  as  in  the  United 
States  and  England  crime  is  regarded  as  territorial,  and  the  wrong- 
doer punishable  solely  in  the  place  where  his  offense  occurred, 
failure  on  the  part  of  either  of  them  to  surrender  a  fugitive  to 
the  foreign  country  within  whose  territory  he  committed  a  crime, 
would  result  in  his  immunity  from  prosecution.^  Where  the 
laws  of  the  State  of  asylum  permit  the  prosecution  of  its  own 
nationals,  who  may  have  committed  offenses  on  foreign  soil, 
the  surrender  of  such  an  individual  indicates  even  stronger  pref- 
erence for  the  prosecution  of  the  wrongdoer  at  the  place  where 
his  criminal  acts  took  place.  Such  preference  on  the  part  of  the 
State  of  asylum  always  indicates  that  it  regards  with  respect  the 
administration  of  justice  of  the  country  demanding  the  fugitive, 
and  also  that  it  itself  denounces  as  illegal  and  punishable  the  com- 
mission within  its  own  domain  of  acts  such  as  are  laid  at  the 
door  of  the  fugitive.  Respect  for  the  administration  of  justice  in 
foKcign  countries  sufficient  to  encourage  States  to  conclude  treaties 
of  extradition  is  the  result  of  a  highly  organized  society  of  nations, 
the  intercourse  between  whose  members  has  become  intimate  and 
friendly.  The  habit  of  extradition  marks  the  abatement  of  dis- 
trust which  long  retarded  the  surrender  of  fugitives  and  often- 
times served  to  thwart  the  operation  of  existing  treaties.^ 

As  a  reasonable  exercise  of  its  exclusive  right  of  jurisdiction 
within  its  own  domain,  a  State  is  believed  to  violate  no  legal  duty, 
in  declining,  in  the  absence  of  treaty,  to  surrender  a  fugitive 
found  within  its  territory  to  any   foreign   demanding    Govern- 

4  ed.  (Prepared  by  that  author  and  E.  Percival  Clarke),  London,  1903;  Pas- 
quale  Fiore,  Traite  de  Droit  Penal  International  et  de  V Extradition,  French 
translation  by  Antoine,  2  vols.,  Paris,  1880;  Sir  Francis  T.  Piggott,  Extra- 
dition, London,  1910;  J.  Saint-Aubin,  U Extradition  et  le  Droit  Extradi- 
fionnel  Theorique  et  Applique,  2  vols.,  Paris,  1913;  Maurice  Violet,  La 
Procedure  d' Extradition  Specialement  dans  le  Pays  de  Refuge,  Paris,  1898. 

Proceedings,  American  Society  of  International  Law,  III,  95-165;  Draft  on 
Extradition  prepared  by  Delegates  to  the  International  Commission  of  Jurists 
at  Rio  de  Janeiro,  For.  Rel.  1912,  37-39;  Resolutions  adopted  by  the  Insti- 
tute of  International  Law  in  1880,  Annuaire,  V,  127,  J.  B.  Scott,  Resolutions, 
42;  Resolutions  adopted  by  the  same  body  in  1892,  Anmuiire,  XII,  182, 
J.  B.  Scott,  Resolutions,  102. 

1  Mr.  Blaine,  Secy,  of  State,  to  Baron  Fava,  Italian  Minister,  June  23, 
1890,  For.  Rel.  1890,  559,  566,  Moore,  Dig.,  IV,  290,  296. 

2  Statement  in  Moore,  Dig.,  IV,  287. 

See  also  in  this  connection,  For.  Rel.  1913,  38. 

'  Moore,  Extradition,  I,  §  8 ;  also  Biron  &  Chalmers,  Extradition,  1-14. 

567 


§310]         RIGHTS  AND   DUTIES   OF   JURISDICTION 

ment.  Such  is  the  position  taken  by  the  judicial  and  political 
departments  of  the  United  States.^  Nevertheless  the  necessity 
for  extradition  among  civilized  States  is  so  evident,  and  the  con- 
clusion of  treaties  to  that  end  so  habitual,  that  the  persistent  re- 
fusal of  a  member  of  the  family  of  nations  to  enter  into  any  ex- 
tradition convention  with  any  other  member  might  be  looked 
upon  as  betokening  unfriendly  ccmduct.^ 


Extradition  without  Treaty 

(1) 
§  311.   Refusal  by  the  United  States. 

The  almost  unvarying  practice  of  the  United  States  has  been 
to  decline  to  surrender  fugitive  criminals  save  in  pursuance  of 
treaty.^  It  has  been  frequently  declared  that  the  Executive 
lacks  the  power  under  such  circumstances  to  cause  the  arrest  and 
surrender  of  the  individual.^ 

1  United  States  v.  Rauscher,  119  U.  S.  407,  411-412 ;  also  the  learned  opin- 
ion of  Tilghman,  C.  J.,  in  Commonwealth  v.  Deacon,  10  S.  &  R.,  125;  In  the 
Matter  of  Metzger,  5  How.  176,  188. 

Mr.  Webster,  Secy  of  State,  to  Mr.  d'Argaiz,  June  21,  1842,  Webster's 
Works,  VI,  399,  405,  quoted  in  Moore,  Dig.,  IV,  246;  Mr.  Buchanan,  Secy. 
of  State,  to  Mr.  Wise,  Sept.  27,  1845,  MS.  Inst,  to  Brazil,  XV,  119,  Moore, 
Dig.,  IV,  246 ;  Memorandum  of  Instructions  of  Mr.  Jeiferson,  Secy,  of  State, 
March  22,  1792,  entitled  "Heads  of  Consideration  on  the  Establishment  of 
Conventions  between  the  United  States  and  their  Neighbors  for  the  Mutual 
Delivery  of  Fugitives  from  Justice",  Am.  State  Pap.,  For.  Rel.,  I,  258. 

2  Moore,  Extradition,  I,  §  14. 

3  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Davie,  May  29,  1886,  160  MS.  Dom. 
Let.  354,  Moore,  Dig.,  IV,  252 ;  Terlinden  v.  Ames,  184  U.  S.  270,  289,  citing 
Moore,  Extradition,  I,  21 ;  United  States  v.  Rauscher,  119  U.  S.  407. 

*  Mr.  Jefferson,  Secy,  of  State,  to  the  President,  Nov.  7,  1791,  MSS.  De- 
partment of  State,  Moore,  Extradition,  I,  22 ;  Wirt,  Atty.-Gen.,  1  Ops.  Attys.- 
Gen.,  509,  521 ;  Legare,  Atty.-Gen.,  3  Ops.  Attys.-Gen.,  661 ;  Report  of  Mr. 
Frehnghuysen,  Secy,  of  State,  to  the  President,  Feb.  13,  1884,  S.  Ex.  Doc. 
98,  48  Cong.,  1  Sess.,  Moore,  Dig.,  IV,  251 ;  Mr.  Gresham,  Secy,  of  State,  to 
Mr.  Sousa  Roza,  June  5,  1895,  MS.  Notes  to  Portugal,  VII,  171,  Moore,  Dig., 
IV,  252;  Mr.  Olney,  Secy,  of  State,  to  Mr.  Ransom,  Minister  to  Mexico, 
Dec  13,  1895,  For.  Rel.  1895,  II,  1008  Moore,  Dig.,  IV,  252 ;  Mr.  Day,  Secy. 
of  State,  to  Mr.  Viso,  May  26,  1898,  MS.  Notes  to  Argentine  Legation,  VII, 
29,  Moore,  Dig.,  IV,  252. 

See  Case  of  Arguelles,  who  was  surrendered  in  1864  to  Spain  by  executive 
order.     Moore,  Extradition,  I,  §  27. 

The  immigration  laws  of  the  United  States,  providing  for  the  deportation 
of  fugitives  who  have  been  convicted  of  crime,  are  regarded  as  inapplicable 
in  cases  where  the  individual  is  merely  charged  with  the  commission  of  an 
offense.  Mr.  Bacon,  Acting  Secv.  of  State  to  the  Swiss  Minister,  March  16, 
1907,  For.  Rel.  1907,  II,  1044.     See,  also,  Moore,  Dig.,  IV,  259. 

Compare  case  of  the  extradition  and  deportation  of  an  individual  from  Costa 
Rica  to  the  United  States  as  an  act  of  courtesy  in  1913,  For.  Rel.  1913,  330- 
332. 

568 


POLICY  [§  313 

(2) 

§  312.   Requests  on  Grounds  of  Courtesy. 

In  view  of  its  practice  in  refusing  to  surrender  fugitives  to 
foreign  States  with  which  extradition  treaties  have  not  been 
concluded,  the  United  States  does  not  demand  from  such  countries 
the  surrender  of  persons  who  there  seek  asylum  after  having 
escaped  from  places  under  American  control.^  Not  infrequently, 
however,  the  United  States  has,  under  such  circumstances,  re- 
quested the  surrender  of  a  fugitive,  on  grounds  of  courtesy, 
making  clear  at  the  same  time  its  own  inability  to  reciprocate  in 
granting  similar  favors.^ 


Treaties  of  the  United  States 

(1) 
§  313.   Policy. 

The  extradition  conventions  of  the  United  States,  from  the 
Jay  Treaty  concluded  with  Great  Britain  November  19,  1794, 
down  to  the  present  time  have,  in  almost  every  case,  contained 
the  requirement  that  the  surrender  of  a  fugitive  should  be  con- 
ditioned upon  the  production  and  presentation  to  the  country 

1  Mr.  Fish,  Secv.  of  State,  to  Mr.  Adee,  Charge,  Nov.  3,  1876,  MS.  Inst. 
Spain,  XVIII,  17,  Moore,  Dig.,  IV,  255  ;  Report  of  Mr.  Bayard,  Secy,  of  State, 
to  the  President,  on  McGarigle's  Case,  Sept.  14,  1887,  17  MS.  Rept.  Book, 
13,  Moore,  Dig.,  IV,  256;  Mr.  Hay,  Secv.  of  State,  to  the  Governor  of  Porto 
Rico,  June  19,  1900,  245  MS.  Dom.  Let"  649,  Moore,  Dig.,  IV,  257. 

-  Mr.  Frelinghuvsen,  Secy,  of  State,  to  Mr.  Gosling,  Dec.  18,  1884,  153 
MS.  Dom.  Let.  459,  Moore,  Dig.,  IV,  255;  Mr.  Olney,  Secy,  of  State,  to  Mr. 
Moody,  March  7,  1896,  208  MS.  Dom.  Let.  386,  Moore,  Dig.,  IV,  256;  also 
documents  relating  to  extradition  of  Horace  G.  McKinley,  granted  by  China 
in  1907,  For.  Rel.  1908,  129 ;  documents  relating  to  extradition  of  William 
Adler  et  al.,  from  Honduras  in  1908,  For.  Rel.  1908,  470;  documents  relating 
to  the  detention  of  the  Goldsboro  and  extradition  of  Francis  G.  Bailey  et  al., 
from  Honduras  in  1908,  For.  Rel.  1908,  474. 

In  connection  with  the  extradition  of  Paul  Stensland  from  Morocco  in 
1906  as  an  act  of  grace,  it  is  to  be  observed  that  the  Government  of  that  coun- 
try declared  that  it  regarded  the  authority  of  the  American  Minister  over 
his  own  countrymen,  "as  supreme  and  unquestionable."  Mr.  Gummcre, 
American  Minister  to  the  Secretary  of  State,  Sept.  6,  1906,  For.  Rel.  1906, 
II,  1161,  1163. 

Opposing  the  policy  of  requesting  the  extradition  of  fugitives  as  a  favor, 
see  Gushing,  Atty.-Gen.,  6  Ops.  Attys.-Gen.,  85,  Moore,  Dig.,  IV,  254;  Mr. 
Hill,  Acting  Secy,  of  State,  to  Mr.  Warner,  Oct.  6,  1899,  240  Dom.  Let. 
407,  Moore,  Dig.,  IV,  257. 

Among  recent  cases  where  extradition  has  been  granted  as  an  act  of  grace, 
may  be  noted  that  of  V.  Nalbandian  (Bulgaria),  For.  Rel.  1910,  122-128;  C. 
Vandenberg  (Honduras),  id.,  646;  Joseph  and  Jacob  Goldberg  (Austria- 
Hungary),  For.  Rel.  1911,  10-11. 

569 


§313]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

of  asylum  of  such  evidencfe  of  criminality  as  would,  according 
to  the  law  of  the  place  where  the  accused  might  be  found,  justify 
his  apprehension  and  commitment  for  trial. ^  This  implies,  there- 
fore, that  the  conduct  of  the  accused  must  have  been  such  as 
to  violate  the  criminal  laws  of  the  country  of  asylum.  Only 
upon  such  a  theory  could  he  be  there  held  for  commitment  and 
trial.2 

The  general  requirement  respecting  evidence  of  criminality 
necessitates,  furthermore,  a  decision  by  some  authority  in  the 
country  of  asylum  as  to  whether  the  evidence  presented  justifies 
the  apprehension  and  commitment  of  the  accused  for  trial  accord- 
ing to  the  local  law.  This  involves  the  exercise  of  an  essentially 
judicial  function. 

Although  the  early  treaties  of  the  United  States  made  no  pro- 
vision respecting  procedure,  and  although  no  Act  of  Congress 
offered  guidance,  the  weight  of  opinion  sanctioned  the  view  that 
judicial  rather  than  executive  authority  should,  in  the  first  in- 
stance, pass  upon  the  sufficiency  of  the  evidence  presented.^  An 
Act  of  Congress  of  1848,  supplemented  by  later  legislation,  has  since 
that  time  provided  for  the  performance  of  the  judicial  function 
by  the  judicial  rather  than  the  executive  branch  of  the  Govern- 
ment of  the  United  States.     All  extradition  treaties  subsequent 

1  An  exception  is  noted  in  the  convention  with  Uruguay,  March  11,  1905, 
Malloy's  Treaties,  II,  1825.  Notwithstanding  the  singular  omission,  it  is  not 
believed  that  the  contracting  parties  contemplated  any  departure  from  the 
existing  practice,  or  a  lessening  of  the  requirement  respecting  the  sufficiency 
of  evidence  to  be  presented  by  a  demanding  government.  Arts.  IV  and  V 
justify  this  conclusion. 

In  his  work  on  extradition,  §  77,  Professor  Moore  adverts  to  the  fact  that 
Thomas  Pinckney,  in  his  negotiations  that  resulted  in  the  treaty  with  Spain 
of  October  27,  1795  (which  contained  no  provisions  relative  to  extradition), 
declined  to  accede  to  the  Spanish  suggestion  that  transgressors  should  be 
surrendered  "upon  a  single  demand";  and  that  he  proposed,  on  the  other 
hand,  that  any  demand  should  be  "supported  by  testimony  of  the  commis- 
sion of  the  crime  which  should  be  sufficient  in  the  country  to  which  the  fugi- 
tive has  flown  to  cause  him  to  be  arrested  and  brought  before  the  tribunals 
of  justice  if  the  crime  had  there  been  committed,"  citing  despatches  from 
Madrid,  Vol.  VI,  MSS.  Department  of  State. 

^  "The  general  principle  of  international  law  is  that  in  all  cases  of  extradi- 
tion the  act  done  on  account  of  which  extradition  is  demanded  rnust  be  con- 
sidered a  crime  by  both  parties,  and  as  to  the  offence  charged  in  this  case 
the  treaty  of  1889  with  Great  Britain  embodies  that  principle  in  terms.  The 
offence  must  be  'made  criminal  bv  the  laws  of  both  countries.'"  Fuller,  C. 
J.,  in  Wright  v.  Henkel,  190  U.  S.  40,  58. 

^  Matter  of  Metzger,  5  How.  176,  188-189,  where  the  Supreme  Court  of 
the  United  States  in  1847  approved  the  action  of  the  President  in  referring 
to  the  judgment  of  a  judicial  representative  the  evidence  offered  by  the 
French  diplomatic  officer  to  secure  the  extradition  of  an  individual  charged 
with  forgery  imder  treaty  with  France  of  November  9,  1843.  Also  case  of 
Nash  under  Art.  XXVII  of  the  Jay  Treaty,  November  19,  1794,  Wharton's 
State  Trials,  392. 

570 


DEVELOPMENT    OF    THE    RULE  [§  315 

thereto  have  been  regarded  as  having  been  concluded  with  ref- 
erence to  and  in  harmony  with  the  statutory  law.^ 

(2) 
§  314.    Offenses  Generally. 

Since  the  earhest  agreements  with  England  of  1794  and  1842, 
and  with  France  of  1843  and  1845,  there  has  been  a  constant  and 
natural  increase  in  the  number  of  offenses  made  extraditable. 
Numerous  treaties  of  the  twentieth  century,  such  as  those  with 
France  of  1909,  and  with  Salvador  of  1911,  are  fully  responsive 
to  the  elaborate  and  intricate  needs  of  the  present  time.  Thus, 
for  example,  among  the  offenses  specified  are  "the  willful  and 
unlawful  destruction  or  obstruction  of  railroads,  which  endangers 
human  life",  and  under  certain  circumstances,  the  "breach  of 
trust  by  a  bailee,  banker,  agent,  factor,  executor,  administrator, 
guardian,  trustee  or  other  person  acting  in  a  fiduciary  capacity."  ^ 
In  the  more  recent  treaties  the  offenses  set  forth  are  described 
with  greater  precision  and  comprehensiveness  than  in  the  earlier 
agreements.^ 

(3) 
Political  Offenses 

(a) 

§  315.  Development  of  the  Rule. 

Long  before  the  establishment  of  international  law  or  of  any 
system  of  extradition,  fugitives  were  frequently  surrendered  to 
the  monarchs  from  whose  control  they  had  fled.  Surrender  was 
usually  induced  by  the  power  of  the  sovereign  making  the  demand. 
The  treatment  that  might  await  the  fugitive  was  no  deterrent. 
Hence  the  return  of  political  offenders  bore  no  resemblance  to 
the  modern  practice  of  extradition  and  was  based  on  a  different 
theory.'*    Consistently  with  the  growth  of  the  idea  that  no  fugi- 

1  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Romero,  Mexican  Minister,  Feb. 
19,  1889,  For.  Rel.  1889,  620-621,  Moore,  Dig.,  IV,  273. 

2  See  Convention  with  France,  Jan.  6,  1909,  Arts.  II,  sees.  12  and  7,  Charles' 
Treaties,  34.  See,  also,  editorial  comment,  Am.  J.,  V,  1060 ;  convention 
with  Honduras,  Jan.  15,  1909,  Charles'  Treaties,  71. 

3  In  the  index  to  Malloy's  Treaties,  II,  2448-2449,  will  be  found  a  list  of 
extraditable  crimes  contained  in  treaties  of  the  United  States,  and  references 
to  the  conventions  in  which  they  are  respectively  to  be  found. 

*  Alberic  Rolin,  Les  infractions  politiques,  Rev.  Droit  Int.,  1  ser.,  XV,  417; 
Moore,  Extradition,  Chap.  VIII,  also  id.,  §§  5  and  6;  Oppenheim,  2  ed.,  I, 
389-392;  W.  B.  Lawrence,  Albany  Law  J.,  XIV,  85;  Biron  &  Chalmers, 
7-12 ;   Bibliography  in  Clunet,  Tables  Genirales,  I,  790-792,  978. 

571 


§315]  RIGHTS   AND    DUTIES    OF   JURISDICTION 

tive  should  be  surrendered  unless  his  acts  were  regarded  as  criminal 
at  the  place  of  asylum  as  well  as  in  the  country  from  which  he 
had  fled,  and  with  a  reluctance  to  surrender  a  fugitive  who  might 
be  exposed  to  summary  and  arbitrary  treatment  if  restored  to 
the  clutches  of  the  demanding  government,  the  principle  of 
granting  asylum  to  political  offenders  became  general.  In  the 
more  enlightened  States  enjoying  liberal  laws  and  constitutional 
government,  the  acts  of  an  individual  participating  in  and  inci- 
dental to  a  revolutionary  movement  abroad  could  not  always 
be  regarded  as  morally  wrongful,  notwithstanding  local  laws 
respecting  treason.  It  seemed  inequitable  that  the  fate  of  a 
revolutionist,  who  had  sought  refuge  in  a  foreign  land,  should 
hang  upon  the  success  or  failure  of  the  uprising  in  which  he  had 
been  a  participant.^ 

Thus  the  very  circumstances  which  rendered  the  modern 
practice  of  extradition  practicable  and  habitual,  served  likewise 
to  check  and  discourage  the  surrender  of  the  political  fugitive. 
The  municipal  laws  of  certain  States,  such  as  Belgium,  Switzer- 
land and  Great  Britain,  emphasized  the  principle  involved  and 
weakened  the  efforts  of  Russia  to  disregard  it.^ 

(b) 

§  316.   Reservation    in    Treaties    of    the    United    States. 
Assassination  of  the  Head  of  a  State. 

In  almost  all  of  the  extradition  treaties  to  which  the  United 
States  has  been  a  party  there  is  a  provision  expressly  declaring 
that  persons  charged  with  the  commission  of  political  offenses 
shall  not  be  surrendered.  With  respect  to  those  very  few  con- 
ventions containing  no  such  provision,  it  is  not  believed  that  the 
contracting  parties  contemplated  the  extradition  of  political 
offenders.^ 

1  Oppenheim,  2  ed.,  I,  §  338.  ^  jj^  j^  §§  333.340. 

Although  Art.  IV  of  the  extradition  treaty  between  Russia  and  Spain  of 
March  9,  1877,  contained  a  reservation  respecting  pohtical  offenses,  that  of 
April  24,  1888,  between  the  same  States,  made  no  similar  provision,  and 
added  to  the  list  of  extraditable  offenses  in  Art.  II  that  of  lese  majeste  with 
respect  to  the  sovereign  or  members  of  his  family.  Tratados  de  Espana,  VII, 
221 ;  id.,  IX,  329. 

'  Declared  Mr.  Fish,  Secretary  of  State,  in  a  communication  to  Mr.  Hoff- 
man, May  22,  1876:  "Neither  the  extradition  clause  in  the  treaty  of  1794 
nor  in  that  of  1842  contains  any  reference  to  immunity  for  political  offenses, 
or  to  the  protection  of  asylum  for  political  or  religious  refugees.  The  public 
sentiment  of  both  countries  made  it  unnecessary.  Between  the  United 
States  and  Great  Britain,  it  was  not  supposed,  on  either  side,  that  guarantees 
were  required  of  each  other  against  a  thing  inherently  impossible,  any  more 

572 


RESERVATION  IN  TREATIES  OF  THE  UNITED  STATES     [§  316 

Without  attempting  to  define  the  term  "poHtical  offense",  or  to 
enumerate  all  of  the  occasions  when  an  act  may  be  said  to  possess 
such  a  character,  the  effort  is  made  to  observe  the  circumstances 
when  a  fugitive  within  the  United  States,  whose  surrender  has 
been  sought  by  a  foreign  government,  has  been  regarded  by  the 
executive  or  judicial  department  of  the  former  as  a  political  offender 
within  the  meaning  of  a  treaty  provision,  and  therefore  discharged 
from  custody.  In  every  case  the  following  elements  have  been 
present :  ^ 

(1)  There  has  been  an  uprising  of  revolutionary  origin  and  pur- 
pose against  the  demanding  government.  In  some  cases  the  up- 
rising has  been  of  vast  dimensions,  such  as  that  which  swept  over 
the  Baltic  provinces  of  Russia  in  1906 ;  ^  in  others  it  has  been  of 
insignificant  proportions,  as  in  the  case  of  Cazo,^  and  in  that  of 

than,  by  the  laws  of  Solon,  was  a  punishment  deemed  necessary  against  the 
crime  of  parricide,  which  was  beyond  the  possibility  of  contemplation."  For. 
Rel.  1876,  233,  237,  Moore,  Dig^,  IV,  334. 

See  message  of  President  Tyler,  Aug.  11,  1842,  submitting  treaty  with 
Great  Britain  of  that  year  to  the  Senate,  Senate  Ex.  Docs.,  27  Cong.,  3  Sess., 
Vol.  I,  Doc.  2,  p.  22,  quoted  in  Moore,  Extradition,  I,  §  152;  id.,  I,  §  206. 
Also  Mr.  Wilson,  Acting  Secy,  of  State,  to  the  American  Ambassador  to 
Mexico,  Oct.  3,  1912,  For.  Rel.  1912,  850. 

1  The  American  cases  considered  are  the  following :  The  Mexican  revo- 
lutionists of  1880,  For.  Rel.  1880,  787-788,  Moore,  Extradition,  I,  §216; 
Case  of  Francisco  J.  Cazo,  Mexico,  Moore,  Extradition,  I,  §  217,  and  MSS. 
there  cited  not  contained  in  published  documents  of  the  United  States; 
the  Salvadorean  Refugees,  In  re  Ezeta,  62  Fed.  972;  J.  B.  Moore,  in  Am. 
Law  R.,  XXIX,  1;  For.  Rel.  1894,  563-576;  the  San  Ignacio  raid,  Mexico, 
Ornelas  v.  Ruiz,  161  U.  S.  502 ;  For.  Rel.  1897,  405-416,  Moore,  Dig.,  IV, 
336-349 ;  Case  of  James  Lynchehoun,  Great  Britain,  proceedings  in  the 
Case  of  James  Lynchehoun  containing  text  of  decision  by  Commissioner 
Charles  W.  Moores,  Indianapolis,  1903 ;  Case  of  Christian  Rudovitz,  Russia, 
1909,  Mr.  Root,  Secy,  of  State,  to  Baron  Rosen,  Russian  Ambassador,  Jan. 
26,  1909,  Dept.  of  State,  file  16649/9,  Serial  No.  121 ;  printed  Statement 
and  Argument,  and  Abstract  of  testimony  submitted  to  the  Secretary  of  State 
in  behalf  of  the  accused,  January,  1909;  Case  of  Pouren,  Russia  (Case  of 
Jan  Janoff  Pouren,  New  York,  1909),  1909. 

See,  also,  Case  of  McKenzie,  Moore,  Extradition,  I,  §  211,  whose  extradi- 
tion was  sought  by  Canada  in  1837  from  the  authorities  of  the  State  of  New 
York,  and  refused  by  the  latter  because,  as  the  acts  charged  against  the 
accused  were  regarded  as  political,  they  were  embraced  within  the  provi- 
sions of  the  New  York  statute  excepting  treason  from  the  crimes  on  account 
of  the  commission  of  which  a  fugitive  might  be  surrendered  by  the  governor 
to  a  foreign  State.  Also  the  St.  Albans  raid  case  in  1864,  in  which  a  Canadian 
court  ordered  the  discharge  of  certain  prisoners  whose  extradition  was  sought 
by  the  United  States.    Moore,  Extradition,  I,  §  215,  and  documents  there  cited. 

An  English  case  frequently  cited  by  American  authorities  is  that  of  re 
Castioni,  1891,  1  Q.  B.  149.  See,  also,  re  Meunier,  1894,  2  Q.  B.  415;  re 
Arton,  1896,  1  Q.  B.  108;  the  Swiss  Case  of  Wassilieff,  1908,  Entscheidungen 
des  Schweizerischen  Bundesgerichtes,  XXXIV,  pt.  I,  533,  and  comments 
thereon  by  Julian  W.  Mack,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  144, 
153. 

^  Abstract  of  testimony  in  the  Rudovitz  case  submitted  to  the  Secretary  of 
State  in  behalf  of  the  accused,  January,  1909. 

3  Moore,  Extradition,  I,  §  217.  . 

573 


§  316]        RIGHTS   AND    DUTIES   OF   JURISDICTION 

the  San  Ignacio  raid.^  In  one  case,  that  of  Lynchehoun,  the  act 
of  the  accused  was  incidental  to  a  popular  movement  to  "over- 
throw landlordism"  in  Ireland,  as  a  means  of  securing  reform  in 
legislation,  a  change  in  the  governing  classes,  and  possibly  inde- 
pendence from  English  parliamentary  rule.^  It  has  been  regarded 
as  sufficient  if  there  were  in  fact  a  party  seeking  governmental 
control,  however  lacking  in  military  or  civil  organization.^ 

(2)  The  accused  has  been  connected  with  the  movement.  In 
no  case  has  there  been  serious  question  as  to  his  relation  to  the 
uprising.'' 

(3)  Either  the  acts  charged  against  the  accused  have  been 
deemed  incidental  to  the  movement ;  ^   or  the  evidence  has  failed 

1  Statement  of  facts  in  Ornelas  v.  Ruiz,  161  U.  S.  502,  510-511.  See,  also, 
J.  Reuben  Clark,  Jr.,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  95,  120. 

^  Opinion  of  Commissioner  Moores,  Proceedings  in  Case  of  James  Lynche- 
houn, 124-130. 

3  Declared  J.  R.  Clark,  Jr.,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III, 
95,  120:  "It  would  also  appear  from  these  Russian  cases  that  the  party  to 
which  the  fugitive  belongs  need  not,  in  order  to  be  considered  revolutionary, 
be  warlike,  that  is,  it  need  not  at  the  moment  have  an  armed  force  in  the 
field  or  be  engaged  in  military  operations. 

"And  it  would  seem,  further,  that  such  a  party  need  not  have  control  of 
any  of  the  actual  governmental  machinery  even  in  the  district  in  which  the 
acts  complained  of  occurred.  It  would  appear  to  be  sufficient  if  it  were  an 
actual  party,  its  operations  as  well  as  its  organization  being  secret.  It  should, 
however,  be  noted  that  in  the  Russian  cases  it  appeared  that  although  the 
Russian  Government  was  in  actual  control  of  the  governmental  offices  of  the 
revolutionary  provinces,  the  revolutionists  maintained  among  themselves 
a  more  or  less  effective  organization  and  attempted,  at  least,  to  govern  the 
members  of  their  own  party  and  to  punish  those  inimical  to  it." 

It  seems  clear  that  in  the  absence  of  an  uprising,  acts  of  violence,  whether 
for  the  purpose  of  inciting  revolution,  or  spreading  anarchy,  would  not  be 
regarded  as  political  offenses  under  the  treaties  of  the  United  States.  J.  B. 
Moore  in  Am.  Law  Rev.,  XXIX,  16-17,  citing  re  Meunier,  1894,  2  Q.  B.  415, 
419.  As  the  anarchistic  theory  precludes  the  idea  of  government,  an  avowed 
anarchist  would  find  difficulty  in  shielding  himself  from  the  consequences 
of  his  acts  by  asserting  a  connection  with  any  movement,  the  object  of  which 
was  to  gain  control  of  a  government  for  the  purpose  of  exercising  govern- 
mental functions. 

4  Declared  Denman,  J.,  in  Re  Castioni,  (1891)  1  Q.  B.  149,  159:  "The 
question  really  is,  whether,  upon  the  facts,  it  is  clear  that  the  man  was  acting 
as  one  of  a  number  of  persons  engaged  in  acts  of  violence  of  a  political  char- 
acter with  a  political  object,  and  as  a  part  of  the  political  movement  and  ris- 
ing in  which  he  was  taking  part."  Cited  with  approval  by  Morrow,  J.,  In 
re  Ezeta,  62  Fed.  972,  999 ;  also  by  Secretary  Sherman  in  the  Guerra  Case 
(San  Ignacio  raid),  and  by  Secretary  Root  in  the  Rudovitz  Case. 

*  With  respect  to  the  Rudovitz  Case  Mr.  Root,  Secy,  of  State,  declared 
in  a  communication  to  Baron  Rosen,  Russian  Ambassador,  Jan.  26,  1909 : 

"In  reply  I  have  the  honor  to  say  that  an  attentive  reading  of  the  evidence 
offered  at  the  hearing  before  the  extradition  magistrate  goes  to  show,  —  that 
on  the  night  of  January  3,  1906,  a  party  of  some  sixteen  armed  men,  masked 
and  disguised,  came  to  the  little  village  of  Benen  on  the  estate  of  Benen  and, 
having  gained  entrance  into  certain  houses  of  the  village,  killed  a  man  (Chris- 
tian Leshinsky),  his  wife  (Trina  Leshinsky),  and  their  married  daughter 
(Wilhelmina  Kinze) ;  that  they  also  robbed  the  Kinze  woman  and  her  hus- 
band* (Theodor  Kinze)  before  killing  her ;    and  that  some  time  during  the 

574 


RESERVATION  IN  TREATIES  OF  THE  UNITED  STATES     [§  316 

to  show  that  acts  committed  in  the  course  of  the  uprising  which 
might  possibly  not  be  justly  regarded  as  incidental  thereto,  were 
in  fact  committed  by  the  accused. 

While  the  connection  between  certain  acts,  however  much  to  be 
deplored,  such  as  the  killing  of  spies  or  the  burning  of  houses,  with 
a  political  disturbance  has  oftentimes  been  apparent,  the  relation 
thereto  of  other  acts  such  as  robbery  committed  simultaneously 
has  been  less  easy  to  determine.^  When  the  political  purpose  and 
nature  of  an  expedition  have  been  recognized,  there  has  been  a 
tendency  on  the  part  of  the  United  States,  in  the  absence  of  con- 
clusive evidence  to  the  contrary,  to  regard  acts  of  plunder  as  inci- 
dental to  the  contest.  Such  an  inference  has  been  reasonable 
when  the  evidence  has  failed  to  disclose  that  an  expedition  had  a 
twofold  purpose,  namely,  the  private  enrichment  of  the  partici- 
pants, as  well  as  the  accomplishment  of  an  essentially  public  pur- 
pose. It  has  been  admitted,  however,  that  in  the  course  of  an 
uprising,  wanton  acts  of  robbery  might  be  committed  for  purely 
private  ends,  and  so  render  the   actors  extraditable  on  such  a 

occurrence  they  set  fire  to  the  house  m  which  they  had  found  and  killed  the 
mother,  Trina.  It  does  not  appear  that  the  men  implicated  in  the  affair  gave 
at  the  time  any  reason  for  the  killing  of  Christian  and  Trina  Leshinsky, 
though  they  are  said  to  have  declared  that  they  killed  the  Kinze  woman  be- 
cause she  was  a 'spy.'  .    . 

"The  testimony  of  the  accused  given  before  the  extradition  commissioner 
goes  to  establish  that  the  accused  was  a  member  of  the  Benen  group  of  the 
Social  Democratic  Labor  party,  one  of  the  several  revolutionary  parties  in 
Russia  ;  that  later  he  joined  the  Zhagarn  group  of  that  party  ;  that  at  a  regu- 
lar meeting  of  the  Zhagarn  group,  the  death  of  the  Leshinskys  and  Mrs.  Kinze 
and  the  burning  of  the  premises,  were  voted  as  revolutionary  acts  and  meas- 
ures; and  that  the  accused  participated  in  the  business  before  this  meet- 
ing. Other  witnesses  corroborated  his  testimony  that  the  aim,  purpose,  and 
work  of  the  Social  Democratic  Labor  party  were  revolutionary  and  that  the 
death  of  the  persons  above  named  was  ordered  by  one  of  the  organizations 
of  that  party.  Although  there  was  some  discrepancy  in  the  evidence  as  to 
just  which  local  organization  passed  the  original  death  decree,  this  has  ap- 
peared to  be  immaterial  in  view  of  the  evidence  to  the  fundamental  fact  that 
some  organization  of  this  revolutionary  party  did  actually  decree  that  the  per- 
sons named  should  be  put  to  death.  The  witnesses  testifying  to  these  matters 
were  not  impe iched  and  the  demanding  Government  introduced  no  evidence 
to  controvert  their  testimony. 

"In  view  of  these  facts  and  circumstances  the  Department  after  a  mature 
and  careful  consideration  of  the  evidence  so  adduced  in  this  case,  finds  itself 
forced  to  the  conclusion  that  the  offenses  of  killing  and  burning  with  which 
the  accused  is  charged  are  clearly  political  in  their  nature."  File  No.  16649/9, 
Serial  No.  121. 

1  Thus  in  the  Rudovitz  Case  it  was  urged  by  counsel  for  the  demanding 
government  in  argument  before  the  committing  magistrate,  that  the  prisoner 
should  be  held  to  answer  to  the  charge  of  robbery,  in  case  he  could  not  be  held 
on  any  other,  on  the  ground  that  the  acts  of  robbery  were  not,  in  the  judgment 
of  counsel,  connected  with  or  incidental  to  the  uprising  in  the  Baltic  provinces. 
See  printed  Statement  and  Argument  in  behalf  of  the  accused,  p.  10.  See, 
also,  Mr.  Romero,  Mexican  Minister,  to  Mr.  Sherman,  Secy,  of  State,  Nov. 
15,  1897,  For.  Rel.  1897,  406,  Moore,  Dig.,  IV,  337. 

575 


§316]         RIGHTS   AND   DUTIES   OF   JURISDICTION 

charge.^  In  certain  cases,  the  evidence  has  failed  to  show  that 
the  accused  himself  committed  such  acts,  and  the  United  States 
has  declined,  under  those  circumstances,  to  impute  to  the  pri- 
soner, himself  a  participant  in  a  political  uprising,  responsibility 
for  an  extraditable  offense  committed  by  a  comrade.^ 

When  the  political  nature  of  an  uprising  has  been  recognized,  the 
connection  of  the  accused  therewith  established,  and  the  conduct 
charged  against  him  regarded  as  incidental  thereto,  it  has  been 
deemed  immaterial  whether  the  act  committed  was  such  as  might 
under  normal  circumstances  be  looked  upon  as  a  common  crime, 
such  as  murder  or  arson ;  ^  whether  the  accused  bore  malice  to- 
wards his  victim  ;  ^  whether  the  individual  against  whose  person 
or  property  the  act  was  directed,  was  a  member  of  the  civil  or 
military  branch  of  the  government  sought  to  be  overthrown.^ 

§  317.   The  Same. 

As  the  assassination  of  an  individual  may  occur  under  circum- 
stances such  as  to  render  the  actor  immune  from  extradition  as  a 
political  offender,  numerous  treaties  of  the  United  States  have 

»  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Romero,  Mexican  Minister,  Dec. 
17,  1897,  For.  Rel.  1897,  408,  414,  Moore,  Dig.,  IV,  340,  347. 

2  Id. ;  also  Mr.  Root,  Secy,  of  State,  to  Baron  Rosen,  Russian  Ambassador, 
Jan.  26,  1909,  in  which  it  was  said:  "The  robbery  committed  on  the  same 
occasion  was  a  natural  incident  to  executing  the  resolutions  of  the  revolutionarj' 
group  and  can  not  be  treated  as  a  separate  offense,  certainly  not  as  a  separate 
offense  by  this  man  without  some  specific  identification  of  him  with  that  partic- 
ular act,  and  of  this  there  is  no  evidence  whatever.  Therefore,  none  of  these 
offenses  is  such  as  will  afford  a  proper  and  sufficient  ground  for  the  extradi- 
tion of  the  accused  to  Russia."     File  16649/9,  Serial  No.  121. 

3  The  decisive  point  has  always  been  the  nature  of  the  expedition  and  the 
relation  thereto  of  the  actor  and  of  the  acts  chargeable  to  him,  rather  than  the 
nature  of  what  was  done.  This  has  been  true  even  when  the  case  arose  under 
the  treaty  with  Mexico  of  1861,  reserving  from  its  application  offenses  of  a 
"purely  political  character."  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Romero, 
Dec.  17,  1897,  For.  Rel.  1897,  408,  Moore,  Dig.,  IV,  340.  Compare,  in  this 
connection,  articles  adopted  by  the  Institute  of  International  Law,  Sept.  8, 
1892,  Annuaire,  XII,  182 ;  report  of  Alberic  Rolin  relative  thereto,  id.,  156 ; 
Frederic  R.  Coudert,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  124,  143. 

^  Towards  Mrs.  Kinze,  a  victim  of  the  expedition  in  the  Rudovitz  Case, 
there  was  felt  the  deepest  malice  by  those  who  brought  about  her  death. 
See,  also,  J.  B.  Moore,  in  Am.  Law  Rev.,  XXIX,  1,  17. 

5  J.  R.  Clark,  Jr.,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  95,  120, 
who,  after  stating  that  this  point  is  settled  by  the  recent  Russian  cases  (of 
Rudovitz  and  Pouren),  declared  that:  "Moreover,  it  would  appear  from  the 
cases  that  it  is  not  necessary  that  the  uprising,  if  it  actually  exists,  should  be 
of  any  considerable  extent  or  that  it  give  particular  promise  of  being  success- 
ful. This  seems  to  be  established  by  the  case  of  Guerra,  in  which,  if  the  trans- 
actions in  which  Guerra  took  part  be  divorced  from  the  attending  circum- 
stances, the  expedition  in  which  he  was  engaged  resembles  raids  of  a  rnaraud- 
ing  band  rather  than  an  armed  expedition  of  a  warlike  party,  and  this  same 
observation  applies  with  equal  force  to  the  activities  of  Cazo,  the  defendant 
in  an  earlier  case." 

576 


BURDEN  OF  PROOF  [§  318 

in  varying  form  provided  that  an  act  of  such  a  kind,  directed 
against  the  life  of  the  sovereign  or  head  of  a  foreign  State,  or  a 
member  of  his  family,  should  not  be  deemed  to  be  of  a  political 
character.^  No  cases  have  yet  arisen  where  pursuant  to  such  a 
provision  the  United  States  has  been  called  upon  to  surrender 
an  assassin  whose  victim  has  belonged  to  one  of  the  classes  enu- 
merated.^ 

(c) 
§  318.   Burden  of  Proof. 

American  authority  indicates  clearly  that  when  evidence  offered 
before  a  committing  magistrate  tends  to  show  that  the  offenses 
charged  against  the  accused  are  of  a  political  character,  the  burden 
rests  upon  the  demanding  government  to  prove  the  contrary.^ 
Furthermore,  it  becomes  the  duty  of  the  magistrate  to  pass  upon 
the  evidence  presented  as  to  the  political  character  of  the  acts 
committed."*  From  his  decision  there  is  no  appeal  save  to  the 
Secretary  of  State.^  In  all  cases,  whatsoever  be  the  nature  of 
the  defense,  he  exercises  the  right  to  review  the  decision  of  a 
magistrate  committing  the  prisoner  to  await  extradition.^ 

'  See,  for  example,  Art.  Ill,  treaty  with  Russia,  March  16,  1887,  Malloy's 
Treaties,  II,  1528;  Art.  IV,  treaty  with  Belgium,  Oct.  26,  1901,  id.,  I,  106; 
Art.  IV,  treaty  with  Guatemala,  Feb.  27, 1903,  id.,  1,  881 ;  Art.  Ill,  treaty  with 
Spain,  June  15,  1904,  id.,  II,  1714;  Art.  Ill,  treaty  with  El  Salvador,  April 
11,  1911,  Charles'  Treaties,  108. 

Concerning  the  so-called  attentat  clause  in  the  Belgian  Law  of  1856,  see 
Oppenheim,  2  ed.,  I,  §  335. 

See,  also,  Julian  W.  Mack,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  144, 
151-152,  citing  the  Swiss  cases  of  Jaffai,  Entscheidungen  des  Schiveizerischen 
Bundesgerichtes,  XXVII,  52,  and  of  Malatesta,  id.,  XVII,  450 ;  also  §  852 
(2)  of  the  Russian  Law  on  Extradition,  sanctioned  by  the  Czar  Dec.  15, 
1911,  Rev.  Droit  Int.,  2  ser.,  XIV,  187,  188. 

2  Concerning  correspondence  with  Great  Britain  in  1865,  and  the  Papal 
States  in  1866,  respecting  the  surrender  to  the  United  States  of  persons  in- 
volved in  the  assassination  of  President  Lincoln,  see  Moore,  Extradition, 
I,  §  208,  p.  308,  note  No.  4,  citing  Dip.  Cor.  1865,  Part  I,  386;  id..  Part  II, 
142;  id.,  1866,  Part  II,  121-125.     See  also  Moore,  Dig.,  IV,  352-353. 

3  Morrow,  J.,  In  re  Ezeta,  62  Fed.  972,  999,  quoting  with  approval 
recommendation  of  International  American  Congress  of  1890 ;  Mr.  Sher- 
man, Secy,  of  State,  to  Mr.  Romero,  Mexican  Minister,  Dec.  17,  1897,  For. 
Rel.  1897,  408,  413,  414,  Moore,  Dig.,  IV,  340,  346 ;  Commissioner  Moores, 
Proceedings,  Lynchehoun  Case,  124-125.  See,  also,  Julian  W.  Mack,  1909, 
Proceedings,  Am.  Soc.  of  Int.  Law,  III,  144,  153-155 ;  and  compare  J.  R. 
Clark,  Jr.',  id.,  96-102. 

•*  Such  was  the  position  taken  by  Judge  Morrow,  in  the  Ezeta  Case,  and  by 
Commissioners  Moores  and  Foote,  respectively,  in  the  Lynchehoun  and 
Rudovitz  cases. 

5  Ornelas  v.  Ruiz,  161  U.  S.  502.  The  situation  would  be  otherwise,  how- 
ever, in  the  fanciful  case  where,  irrespective  of  the  testimony  offered,  it  should 
appear  from  the  allegations  of  the  complaint  that  extradition  of  the  accused 
was  sought  in  order  to  prosecute  him  for  a  political  offense,  and  the  decision 
of  the  committing  magistrate  was  adverse  to  the  contentions  of  the  prisoner. 

6  J.  R.  Clark,  Jr.,  1909,  Proceedings,  Am.  Soc.  of  Int.  Law,  III,  95,  114-118. 

577 


§  319]         RIGHTS   AND    DUTIES   OF   JURISDICTION 

(4) 
Nationals 

(a) 

§  319.    Of  the  Country  of  Refuge. 

In  negotiating  extradition  treaties  the  United  States  has  often- 
times sought  the  omission  of  a  common  provision  exempting  a 
contracting  party  from  the  duty  to  surrender  its  own  nationals.^ 
The  attempt  has,  however,  rarely  been  successful ;  in  most  in- 
stances the  United  States  has  been  obliged  to  accept  the  restric- 
tion.- With  respect  to  treaties  containing  no  restriction,  such 
as  those  with  Switzerland  of  November  25,  1850,  and  with  Italy 
of  March  23,  1868,  the  United  States  has  uniformly  contended 
that  by  reason  of  the  general  terms  employed,  the  contracting 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Delfosse,  Belgian  Minister,  Aug.  11, 
187.3,  For.  Rel.  1873,  I,  84;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Bartle- 
man,  No.  110,  June  11,  1894,  MS.  Inst.  Venezuela,  IV,  304,  Moore,  Dig.,  IV, 
288 ;  Mr.  Olney,  Secv.  of  State,  to  Mr.  Ransom,  Minister  to  Mexico,  Dec. 
13,  1895,  For.  Rel.  1895,  II,  1008,  1009,  Moore,  Dig.,  IV,  289. 

Declared  Mr.  Blaine,  Secy,  of  State,  to  Baron  Fava,  Italian  Minister,  June 
23,  1890:  "But  the  chief  object  of  extradition  is  to  secure  the  punishment 
of  crime  at  the  place  where  it  was  committed,  in  accordance  with  the  law 
which  was  then  and  there  of  paramount  obligation.  It  is  for  this  purpose 
that  extradition  treaties  are  made,  and,  except  in  so  far  as  their  stipulations 
may  prevent  the  realization  of  that  design,  they  are  to  be  executed  so  as  to 
give  it  full  effect.  It  is  at  the  place  where  the  offense  was  committed  that  it 
can  most  efficiently  and  most  certainly  be  prosecuted.  It  is  there  that  the 
greatest  interest  is  felt  in  its  punishment  and  the  moral  effect  of  retribution 
most  needed.  There,  also,  the  accused  has  the  best  opportunity  for  defense, 
in  being  confronted  with  the  witnesses  against  him ;  in  enjoying  the  privilege 
of  cross-examining  them ;  and  in  exercising  the  right  to  call  his  own  witnesses 
to  give  their  testimony  in  the  presence  of  his  judges.  These  and  other  weighty 
considerations,  which  it  is  not  necessary  to  state,  have  led  what  I  am  inclined 
to  regard  as  the  great  preponderance  of  authorities  on  international  law  at  the 
present  day  to  condemn  the  exception  of  citizens  from  the  operation  of  treaties 
of  extradition."  For.  Rel.  1890,  559,  566,  Moore,  Dig.,  IV,  290,  296.  See, 
also,  admirable  statement  in  Moore,  Dig.,  IV,  287. 

*  The  existing  treaties  with  Great  Britain  and  Italy  contain  no  restriction. 
The  convention  with  France  of  Nov.  9,  1843,  was  similarly  free,  and  like- 
wise that  with  Switzerland  of  Nov.  25,  1850.  Later  conventions,  however, 
with  France  of  Jan.  6,  1909,  and  with  Switzerland  of  May  14,  1900,  expressly 
removed  any  obligation  to  surrender  citizens.  According  to  Art.  Ill  of  the 
treaty  with  the  Argentine  Republic  of  Sept.  26,  1896,  Art.  VII  of  that  with 
Japan  of  April  29,  1880,  and  Art.  IV  of  that  with  Mexico  of  Feb.  22,  1899, 
it  is  provided  in  differing  form  that  while  the  contracting  parties  are  not 
bound  to  surrender  their  respective  citizens,  each  party  ("the  executive 
authority  of  each",  in  the  Mexican  treaty)  shall  have  the  power  to  deliver  them 
up,  if  in  its  discretion  it  should  be  deemed  proper  to  do  so. 

See  Case  of  Mattie  D.  Rich,  an  American  citizen,  arising  under  the  Mexi- 
can treaty,  For.  Rel.  1899,  497-501,  Moore,  Dig.,  IV,  303 ;  also  Case  of  Yoshi- 
taro  Abe,  a  Japanese  subject  extradited  from  Japan  to  Hawaii,  For.  Rel. 
1908,  512-515. 

578 


OF    A    THIRD    COUNTRY  [§  320 

parties  undertook  to  surrender  their  respective  nationals.^  Tlie 
highest  court  of  Switzerland  acquiesced  in  1891  in  the  American 
interpretation  of  a  treaty  with  that  State,  as  it  appeared  that 
such  was  the  clear  understanding  of  the  parties  when  the  agree- 
ment was  concluded.^  Italy,  however,  has  always  asserted  that 
its  treaty  with  the  United  States  imposed  no  duty  on  the  former 
to  surrender  its  own  subjects.  It  has  emphasized  the  fact  that 
by  the  Italian  penal  code  in  force  at  the  time  of  the  negotiation 
of  the  treaty,  and  ever  since  in  force,  "  the  extradition  of  a  citizen 
is  not  admissible."  ^  The  United  States,  on  the  other  hand, 
has  contended  that  the  circumstances  attending  the  negotiation 
indicate  a  different  understanding  by  both  parties.  Notwith- 
standing the  divergence  of  views,  the  United  States  has  not  treated 
the  Italian  practice  as  a  breach  of  the  contractual  obligation  re- 
quiring abrogation  of  the  treaty.  While  it  has  ceased  generally 
to  make  requisition  for  Italian  subjects,  it  has  not  regarded  itself 
as  free  from  the  obligation  of  surrendering  its  own  citizens.  On 
the  theory,  therefore,  that  in  such  matters  extradition  treaties 
need  not  be  reciprocal  in  their  operation,  Mr.  Knox,  Secretary 
of  State,  in  1910  decided  that  the  United  States  should  surrender 
to  Italy  one  Charlton,  an  American  citizen,  charged  with  the  com- 
mission of  murder  in  the  territory  of  that  State,^  and  the  Su- 
preme Court  of  the  United  States,  in  consequence  thereof, 
declared  it  to  be  its  duty  to  recognize  the  obligation  to  sur- 
render the  accused  "as  one  imposed  by  the  treaty  as  the  supreme 
law  of  the  land  and  as  affording  authority  for  the  warrant  of 
extradition."  ^ 

(b) 
§  320.    Of  a  Third  Country. 

According  to  the  treaties  of  the  United  States,  the  fact  that  a 
fugitive  whose  surrender  is  demanded  by  a  contracting  party  is  a 
national  of  a  third  State  is  not  made  an  obstacle  to  extradition. 
The  common  prov'sion  respecting  the  situation  where  the  sur- 

iSee  Mr.  Blaine,  Secy,  of  State,  to  Baron  Fava,  Italian  Minister,  June 
23,  1890,  For.  Rel.  1890,  559,  Moore,  Dig.,  IV,  290. 

2  Case  of  Piguet,  1891,  Entscheidungen  des  Schireizerischen  Bundesgerichtes, 
XVII,  85-91.     A  translation  of  the  major  portion  of  the  opinion  is   con- 
tained in  Moore,  Dig.,  IV,  298-300. 
'-  3  Baron  F^va,  Italian  Minister,  to  Mr.  Blaine,  Secy,  of  State,  April  20, 
1890,  For.  Rel.  1890,  555. 

*  Memorandum  of  Mr.  Knox,  Secy,  of  State,  Dec.  9,  1910,  re  Porter  Charl- 
ton, For.  Rel.  1910,  654.  See,  also,  Ex  parte  Charlton,  185  Fed.  880,  886- 
887 

5'Charlton  v.  Kelly,  229  U.  S.  447,  476. 

579 


§320]  RIGHTS   AND   DUTIES   OF  JURISDICTION 

render  of  one  person  is  sought  by  several  states  simultaneously, 
never  creates  a  preference  in  favor  of  a  demanding  country  to 
which  the  fugitive  may  owe  allegiance.^  This  emphasizes  the 
unimportance  of  his  nationality  except  in  so  far  as  he  may  be  a 
citizen  of  the  State  of  refuge.^ 

The  United  States  does  not  question  the  right  of  a  foreign  State 
to  surrender  to  another  an  American  citizen  whose  extradition 
from  the  former  has  been  demanded.^  This  is  true  even  where  the 
State  of  refuge,  according  to  its  own  laws,  habitually  surrenders 
fugitives  in  the  absence  of  extradition  treaties,  upon  a  stipulation 
of  reciprocity  to  a  demanding  government.^  The  energies  of  the 
Department  of  State  appear  to  be  confined  to  the  effort  to  secure 
for  the  accused  the  enjoyment  of  all  rights  which  are  applicable 
to  extradition  cases  in  the  country  where  the  fugitive  is  appre- 
hended, and  upon  which  the  demand  for  surrender  is  made.^ 

(5) 

§  321.   Irregular  Recovery  of  Fugitive. 

Oftentimes  by  processes  bearing  no  resemblance  to  extradition, 
the  fugitive  is  returned  to  the  country  from  which  he  has  fled  and 

1  It  is  usually  provided  that  extradition  shall  be  granted  to  the  State  whose 
demand  is  first  received!,  provided  that  the  government  from  which  extradi- 
tion is  sought  is  not  bound  by  treaty  to  give  preference  otherwise.  See,  for 
example,  Art.  XI  of  the  treaty  with'  Peru,  Nov.  28,  1899,  Malloy's  Treaties, 
II,  1448.  According  to  Art.  VIII  of  the  treaty  with  Uruguay,  March  11,  1905, 
the  fugitive  is  to  be  surrendered  to  that  State  in  which  he  shall  have  com- 
mitted the  gravest  crime,  Malloy's  Treaties,  II,  1828.  Compare  Art.  X 
treaty  with  France,  Jan.  6,  1909,  Charles'  Treaties,  36. 

See,  also,  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Gadsden,  Minister  to  Mexico, 
No.  54,  Oct.  22,  1855,  MS.  Inst.  Mexico,  XVII,  54,  Moore,  Dig.,  IV,  305. 

2  As  the  existing  treaty  with  Mexico  (Feb.  22,  1899)  contemplates  the  sur- 
render of  American  citizens,  under  circumstances  specified  in  Art.  IV,  and 
also  provides  in  Art.  XII  for  the  subsequent  surrender  to  a  third  Power,  of  a 
person  who  has  been  given  up,  an  American  citizen  surrendered  by  the  United 
States  to  Mexico,  might,  under  the  conditions  specified,  be  later  surrendered 
by  Mexico  to  a  third  State. 

3  Moore,  Extradition,  I,  §  143 ;  Mr.  Uhl,  Acting  Secv.  of  State,  to  INIrs. 
Jewitt,  April  13,  1894,  198  MS.  Dom.  Let.  350,  Moore,  Dig.,  IV,  306. 

Declared  Mr.  Bacon,  Acting  Secj\  of  State,  to  Ambassador  White,  April  3, 
1907 :  "Precisely  the  same  rule  obtains  in  the  United  States  where  the  sur- 
render of  citizens  or  subjects  of  a  third  government  is  demanded.  The 
diplomatic  representative  of  such  government  has  sometimes  made  representa- 
tions to  this  department  with  a  view  to  the  protection  of  its  national ;  but  the 
department  has  always  considered  that  his  legitimate  functions  are  limited 
to  safeguarding  the  fugitive's  rights  by  observing  the  course  of  the  proceed- 
ings so  as  to  satisfy  himself  that  all  the  forms  of  law  have  been  complied  with 
before  extradition  is  granted."     For.  Rel.  1907,  I,  425. 

*  See  documents  relative  to  the  extradition  of  F.  L.  Jacobs,  an  American 
citizen,  to  the  Argentine  Republic  from  France.     For.  Rel.  1907,  I,  411-430. 

5  Mr.  Wilson,  Third  Assist.  Secy,  of  State,  to  Mr.  Jacobs,  May  25,  1907, 
For.  Rel.  1907,  I,  428. 

580 


IRREGULAR    RECOVERY    OF    FUGITIVE  [§321 

is  there  sought  to  be  prosecuted  crlminallj'.  Thus  he  may  be 
abducted  from  foreign  territory  by  agents  of  the  State  of  prosecu- 
tion. In  such  event  the  State  whose  territory  has  been  invaded 
may  demand  the  return  of  the  individual,  or  the  extradition  of 
those  who  removed  him  from  its  domain.^  When  the  fugitive 
is  taken  from  the  State  of  refuge  by  its  own  citizens  or  by  persons 
under  its  control,  and  by  them  placed  within  the  territory  of  the 
State  from  which  he  has  fled,  there  is  no  reason  for  interposition 
on  the  part  of  the  former.^  In  an  important  case,  that  of  the 
British  Indian  Savarkar,  which  became  the  subject  of  adjudica- 
tion before  a  Tribunal  assembled  at  the  Hague,  it  was  held  that 
the  arrest  and  restoration  to  the  British  mail  steamer  Morea  at 
Marseilles  July  7,  1910,  by  a  French  police  officer,  of  the  fugitive 
who  had  escaped  from  that  vessel  where  he  was  in  custody  while 
en  route  to  India  for  prosecution  on  account  of  political  offenses, 
did  not  impose  upon  the  British  Government  a  duty  to  restore 
him  to  France.  It  was  declared  that  while  it  appeared  that  the 
French  officer  was  not  aware  of  the  nature  of  the  charges  against 
the  prisoner,  and  so  made  a  mistake  in  giving  him  up,  there  was, 
nevertheless,  no  bad  faith  on  the  part  of  the  British  authorities 
who  participated  in  the  matter,  and  no  violation  of  the  sovereignty 
of  France ;  and  that  under  the  circumstances  there  was  no  rule 
of  international  law  imposing  a  duty  upon  Great  Britain  to  sur- 
render Savarkar.^ 

Whatever  be  the  right  of  the  State  from  which  he  has  been  with- 
drawn, the  prisoner  is  not  entitled  to  his  release  from  custody 

1  Moore,  Dig.  IV,  330,  citing  Instructions  of  the  Department  of  State  to 
the  American  Minister  at  Madrid,  Aug.  18,  Sept.  12,  Sept.  16,  and  Dec.  8, 
1891,  and  March  24,  1892,  MS.  Inst.  Spain,  XXI,  54,  65,  91 ;  also  despatch 
No.  216,  of  March  5,  1892,  from  the  American  legation  at  Madrid,  124  MS. 
Despatches,  from  Spain ;  also  Mr.  Foster,  Secy,  of  State,  to  Mr.  Washburn, 
Minister  to  Switzerland,  July  27,  1892,  For.  Rel.  1894,  649,  650,  Moore, 
Dig.,  IV,  330.  Corn-pare  Mr.  Seward,  Secy,  of  State,  to  Lord  Lyons,  British 
Minister,  June  6,  1863,  MS.  Notes  to  Great  Britain,  X,  67,  Moore,  Dig.,  IV, 
329. 

2  Mr.  Adams,  Secy,  of  State,  to  Mr.  Jackson,  Jan.  24,  1822,  19  MS.  Dom. 
Let.  248,  Moore,  Dig.,  IV,  328 ;  also  facts  in  Ex  parte  Wilson,  140  S.  W.  98. 

In  the  Case  of  Antonio  Martinez,  kidnaped  in  Mexico  by  a  Mexican, 
brought  into  the  United  States  and  prosecuted  in  California,  the  Department 
of  State  was  of  the  opinion  that  after  having  surrendered  to  Mexico  one  Felix, 
the  kidnaper,  the  United  States  was  under  no  obligation  to  comply  with  the 
demand  of  Mexico  for  the  surrender  of  Martinez  as  well.  It  was  observed 
that  as  the  latter  was  being  prosecuted  by  the  State  of  California,  the  Federal 
Government  felt  itself  unable  to  secure  his  release  from  custody.  For.  Rel. 
1906,  II,  1121-1122. 

3  Award  of  the  Court  of  Arbitration,  Feb.  24,  1911,  in  J.  B.  Scott,  Hague 
Court  Reports,  276,  also  in  Am.  J.,  V,  520.  See  also  editorial  comment,  id., 
V,  208 ;  Oppenheim,  2  ed.,  I,  §  332,  and  periodical  literature  there  cited. 

581 


§321]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

merely  by  reason  of  the  irregular  process  by  which  he  was  brought 
into  the  State  of  prosecution.^ 

(6) 
Limitations  as  to  Trial 

(a) 

§  322.    Offenses    Other    Than  Those  for  Which  Accused 
Was  Extradited 

The  Supreme  Court  of  the  United  States,  in  1886,  announced 
the  principle  that : 

A  person  who  has  been  brought  within  the  jurisdiction  of 
the  court  by  virtue  of  proceedings  under  an  extradition  treaty, 
can  only  be  tried  for  one  of  the  offenses  described  in  that  treaty, 
and  for  the  offense  with  which  he  is  charged  in  the  proceedings 
for  his  extradition,  until  a  reasonable  time  and  opportunity 
have  been  given  him,  after  his  release  or  trial  upon  such  charge, 
to  return  to  the  country  from  whose  asylum  he  has  been  forcibly 
taken  under  those  proceedings.^ 

The  decision  was  based  primarily  upon  existing  statutes  of  the 
United  States.  These  the  Court  declared  might  be  regarded  as  a 
"Congressional  construction  of  the  purpose  and  meaning  of 
extradition  treaties  ",  such  as  the  one  under  consideration ;  but 
whether  so  or  not,  the  Acts  of  Congress  were  said  to  be  conclusive 
upon  the  judiciary  as  to  the  rights  conferred  upon  persons  brought 
from  a  foreign  country  into  the  United  States,  under  extradition 
proceedings.^    The  Court  also  expressed  its  own  view  as  to  the 

1  Ker  V.  Illinois,  119  U.  S.  436 ;  Ex  parte  Wilson,  140  S.  W.  98 ;  Mr.  Bacon, 
Acting  Secv.  of  State,  to  the  Mexican  Charge,  June  22,  1906,  For.  Rel. 
1906,  II,  1121. 

2  United  States  v.  Rauscher,  119  U.  S.  407,  430.  The  prisoner  having 
been  surrendered  by  Great  Britain  on  a  charge  of  the  murder  of  one  Janssen 
on  the  high  seas,  pursuant  to  the  treaty  of  1842,  was  indicted  and  tried  luider 
§  5347  Rev.  Stat,  charging  him  with  cruel  and  unusual  punishment  of  the 
same  man.  This  offense  wa^  not  embraced  in  those  made  extraditable  by 
the  treaty,  which,  moreover,  contained  no  express  provision  relative  to  the 
prosecution  of  a  person  surrendered  for  any  offense  other  than  one  specified 
in  the  agreement.  The  case  came  before  the  Supreme  Court  of  the  United 
States  on  a  certificate  of  division  of  opinion  between  the  judges  of  the  United 
States  Circuit  Court  for  the  Southern  District  of  New  York,  arising  after 
verdict  of  guilty  and  before  judgment,  on  a  motion  in  arrest  of  judgment. 

Concerning  the  Rauscher  Case  and  for  a  summary  of  the  judicial  history  of 
the  subject  in  the  United  States,  see  Moore,  Dig.,  IV,  310-311 ;  also  INIoore, 
Extradition,  I,  §  187,  pp.  276-280. 

^119  U.  S.  407,  423-424.  See,  also,  opinion  of  Gray,  J.,  concurring,  id., 
433. 

582 


OFFENSES    PRIOR    TO    SURRENDER  [§  322 

interpretation  of  the  treaty  of  1842  with  Great  Britain,  declaring 
it  to  be  "very  clear"  that  it  was  not  intended  that  the  agreement 
was  to  be  used  for  any 'purpose  other  than  to  secure  the  trial  of 
the  person  extradited  for  one  of  the  offenses  enumerated  in  the 
treaty.^ 

The  decision  was  contrary  to  the  position  taken  by  I\Ir.  Fish, 
Secretary  of  State,  in  the  Winslow  case  in  1876.^  It  not  only 
confirmed  British  opinion  as  to  the  interpretation  of  the  treaty 
of  1842,  but  also  served,  in  the  minds  of  English  judges,  to  meet 
the  requirements  of  the  British  Extradition  Act  of  1870.^ 

The  treaties  of  the  United  States  commonly  provide  for  the  pro- 
tection of  the  accused  against  prosecution  for  an  offense  com- 
mitted prior  to  his  surrender  and  other  than  that  for  which  he 
was  extradited.  Such  provisions  lack  uniformity  in  scope  and  in 
form.  Some  seem  to  prohibit  the  prosecution  of  the  accused 
for  any  offense  other  than  that  for  which  he  was  surrendered.^ 
Frequently  the  restriction  is  limited.  Thus  the  fugitive,  accord- 
ing to  some  conventions,  may  still  be  prosecuted  if  he  has  had  an 
opportunity  to  return  to  the  country  from  which  he  was  sur- 
rendered,^ or  if  he  has  been  given  a  month's  grace  after  trial,  con- 

1  119  U.  S.  407,  423-424.  See,  also,  opinion  of  Gray,  J.,  concurring,  id., 
433. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Hoffman,  Mar.  31,  1876,  For.  Rel.  1876, 
210,  215.  Concerning  the  Winslow  case,  see  For.  Rel.  1876,  204-309,  Ap- 
pendix A,  615-633,  Moore,  Extradition,  I,  §  150 ;  Moore,  Dig.,  IV,  306-309, 
and  documents  there  cited.  Concerning  case  of  one  Lawrence,  see  Moore,  Ex- 
tradition, I,  §  151. 

^  Report  of  proceedings  in  England  in  Case  of  Alice  Woodhall,  Moore, 
Extradition,  I,  §  166. 

Respecting  the  application  of  the  principle  announced  in  the  Rauscher 
Case,  in  relation  to  certain  treaties,  see  Cosgrove  v.  Winney,  174  U.  S.  64 ;  In 
re  Rowe,  77  Fed.  161 ;  Cohn  v.  Jones,  100  Fed.  639 ;  Johnson  v.  Browne, 
205  U.  S.  309;  Collins  v.  0;Neil,  214  U.  S.  113;  also  Moore,  Dig.  IV,  312- 
318,  and  documents  there  cited;  Frederick  Van  Dyne,  in  Cyc.  of  Law  and 
Procedure,  XIX,  81-82. 

Civil  Suits.  Relative  to  the  question  whether  a  fugitive  surrendered 
pursuant  to  the  terms  of  an  extradition  treaty  may,  prior  to  a  reasonable 
opportunity  to  leave  the  country  after  his  discharge  from  custody,  be  arrested 
in,  or  otherwise  be  made  answerable  to  a  civil  action,  see  Moore,  Extradition, 
I,  §§  178-187,  and  cases  there  discussed;  documents  cited  in  Moore,  Dig., 
IV,  327-328  ;  cases  cited  by  Frederick  Van  Dyne  in  Cyc.  of  Law  &  Proc,  XIX, 
82.  See,  also,  express  provision  in  Art.  VII,  treaty  with  France,  Jan.  6,  1909, 
Charles'  Treaties,  36. 

*  See,  for  example,  Art.  IV,  treaty  with  Portugal,  May  7,  1908,  Malloy's 
Treaties,  II,  1472. 

In  the  case  of  Kelly  v.  Griffin,  241  U.  S.  6,  15,  it  was  declared  that  the 
Court  assumed  that  the  Government  of  Canada,  upon  the  surrender  of  the 
accused  to  that  country,  would  respect  the  treaty  invoked,  and  would  not 
try  him  upon  charges  other  than  those  upon  which  extradition  was  allowed. 

5  Art.  Ill  treaty  with  Great  Britain,  Julv  12,  1889,  Malloy's  Treaties,  I, 
741 ;  Art.  VIII  treaty  with  the  Argentine  Republic,  Sept.  26,  1896,  id.,  I,  27. 
Relative  to  the  application  of  the  British  treaty,  see  Cosgrove  v.  Winney, 

583 


§  322]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

viction  or  pardon,  in  which  to  leave  the  country  to  which  he  was 
surrendered.^  Sometimes  the  consent  of  the  accused  "freely 
granted  and  pubHcly  declared  by  him-"  suffices.^  Oftentimes 
the  consent  is  reserved  to  the  surrendering  State/  which,  in  some 
instances,  is  given  the  right  to  require  the  production  of  docu- 
ments."* There  is  a  tendency  manifest  in  the  more  recent  treaties 
to  make  a  distinction  between  offenses  enumerated  in  the  agree- 
ment to  extradite  and  those  not  contained  therein.  Thus,  accord- 
ing to  Art.  IV  of  the  treaty  with  the  Netherlands  of  June  2,  1887, 
the  restriction  against  punishing  the  accused  for  an  offense  other 
than  that  for  which  he  was  surrendered  is  removed  in  case  the 
offense  charged  is  one  of  those  embraced  in  the  convention.^ 
Some  treaties  go  further,  and  make  express  provision  that  the 
accused  may  be  prosecuted  for  an  offense  mentioned  in  the  agree- 
ment other  than  that  for  which  he  was  surrendered,  subject  to 
notice  to  the  surrendering  State,  to  which  is  reserved  the  right  to 
demand  the  production  of  documents.^ 

The  treaties  of  the  United  States  do  not  purport  to  limit  in  any 
way  the  prosecution  of  the  accused  at  any  time  after  his  surrender 
for  any  offense  whatsoever  committed  subsequent  to  extradition, 
against  the  laws  of  the  State  to  which  he  has  been  given  up.  The 
Supreme  Court  of  the  United  States  has  declared  that  nothing 

174  U.  S.  64 ;  Bryant  v.  United  States,  167  U.  S.  104 ;  Johnson  v.  Browne, 
205  U.  S.  309;  Cohn  v.  Jones,  100  Fed.  639;  correspondence  with  Great 
Britain  in  1891,  re  Leda  Lamontagne,  Moore,  Dig.,  IV,  314-315,  and  docu- 
ments there  cited. 

1  Art.  VII  treaty  with  France  of  Jan.  6,  1909,  U.  S.  Treaty  Series,  No. 
561,  Charles'  Treaties,  36.  See,  also,  correspondence  between  Mr.  Root, 
Secretary  of  State,  and  Mr.  Sternburg,  German  Ambassador,  in  1907,  with 
respect  to  the  operation  of  the  existing  extradition  treaty  with  Germany, 
containing  no  provision  as  to  the  circumstances  when  a  person  extradited 
thereunder  might  be  prosecuted  and  punished  for  an  offense  committed  prior 
to  extradition.     For.  Rel.  1907,  I,  517-519. 

2  See,  for  example,  Art.  VIII  treaty  with  Norway,  June  7,  1893,  Malloy's 
Treaties,  II,  1303 ;  Art.  VIIT  treaty  with  Denmark,  Jan.  6,  1902,  id.,  I,  393. 
According  to  Art.  IX  of  the  treaty  with  Switzerland,  May  14,  1900,  the 
consent  of  the  accused  is  to  be  expressed  in  open  court  and  entered  upon  the 
record,  id.,  II,  1774. 

3  Art.  IX  treaty  with  Peru,  Nov.  28,  1899,  Malloy's  Treaties,  II,  1448 ; 
Art.  Ill  treaty  with  Uruguay,  March  11,  1905,  id.,  II,  1826.  See  corre- 
spondence, 1894-1895,  with  the  German  Embassy  at  Washington  relative 
to  the  consent  of  Jacob  David  to  trial  in  Illinois  for  an  offense  other  than 
that  for  which  he  was  extradited  from  Prussia,  pursuant  to  the  treaty  of 
June  16,  1852.  which  contained  no  provision  relative  to  the  matter.  For. 
Rel.  1895,  I,  488-497,  contained  in  part  in  Moore,  Dig.,  IV,  320-326.  See, 
also,  documents,  id.,  IV,  319  and  326. 

*  This  provision  frequently  appears.  See,  for  example.  Art.  IV  treaty 
with  Salvador,  April  11.  1911,  Charles'  Treaties,  109. 

6  Malloy's  Treaties,  II,  1268. 

«  Art.  Ill  treatv  with  Luxemburg,  Oct.  29,  1883,  Malloy's  Treaties,  I,  1055  ; 
Arts.  XII  and  XIII  treaty  with  Mexico,  Feb.  22,  1899,  id.,  I,  1189. 

584 


LIMITATION    OF    TRIAL   BY    PRESCRIPTION      [§  323 

in  the  Rauscher  Case  is  authority  for  the  contention  that  any 
duty  rests  upon  the  State  to  which  surrender  has  been  made, 
to  afford  the  accused  opportunity  after  his  trial  or  other  termi- 
nation of  his  case,  to  return  to  the  country  from  which  he  was 
extradited.^ 

(b) 

§  323.   Limitation  of  Trial  by  Prescription. 

Provision  is  frequently  made  in  the  more  recent  treaties  of  the 
United  States  that  extradition  shall  not  be  granted  if  the  enforce- 
ment of  the  penalty  for  the  act  committed  by  the  accused  has  been 
barred  by  limitation  according  to  the  laws  of  the  country  to  which 
the  requisition  is  addressed.^  According  to  a  very  few  conventions, 
there  is  a  similar  reservation,  if  from  lapse  of  time  (or  other  lawful 
cause)  the  accused  is  exempt  from  prosecution  according  to  the 
law  of  the  place  where  the  offense  was  committed.^  By  at  least 
one  treaty  extradition  is  precluded  when  by  the  law  of  either  the 
demanding  country,  or  that  upon  which  extradition  is  made, 
"the  criminal  prosecution  or  penalty  imposed  is  barred  by  limi- 
tation." ^ 

1  Collins  V.  O'Neil,  214  U.  S.  113;  affirming  In  re  Collins,  151  California, 
340.  Declared  Peckham,  J.,  in  the  course  of  the  opinion  of  the  court:  "It 
is  impossible  to  conceive  of  representatives  of  two  civilized  countries  solemnly- 
entering  into  a  treaty  of  extradition,  and  therein  providing  that  a  criminal 
surrendered  according  to  demand,  for  a  crime  that  he  has  committed,  if 
subsequently  to  his  surrender  he  is  guilty  of  murder  or  treason  or  other  crime 
is,  nevertheless,  to  have  the  right  guaranteed  to  him  to  return  unmolested 
to  the  country  which  surrendered  him.  We  can  imagine  no  country,  by 
treaty,  as  desirous  of  exacting  such  a  condition  of  surrender  or  any  country 
as  willing  to  accept  it."  Id.,  122-123.  See,  also,  Collins  v.  Johnston,  237 
U.  S.  502. 

Obviously  extradition  should  not  be  used  as  a  means  for  obtaining  juris- 
diction of  the  person  of  the  accused  for  civil  proceedings.  Smith  v.  Govern- 
ment of  Canal  Zone,  249  Fed.  273,  279. 

2  See,  for  example,  Art.  VIII  treaty  with  France,  Jan.  6,  1909,  Charles' 
Treaties,  36.     Concerning  this  treaty  see  editorial  comment,  Am.  J.,  V,  1060. 

3  Art.  V  treaty  with  the  Dominican  Repubhc,  June  19,  1909,  Charles' 
Treaties,  27;  Art.  V  treaty  with  El  Salvador,  April  18,  1911,  id.,  109;  Art. 
V  treaty  with  Spain,  June  15,  1904,  Malloy's  Treaties,  II,  1715. 

*  Art.  VIII  treaty  with  Switzerland,  May  14,  1900,  Malloy's  Treaties,  II, 
1773.  See,  also,  Art.  II  convention  concluded  by  Central  American  States 
at  Central  American  Peace  Conference,  Washington,  Dec.  20,  1907,  For. 
Rel.  1907,  II,  702. 

Miscellaneous  Provisions.  It  may  be  observed  that  the  more  recent 
treaties  of  the  United  States  make  provision  for  the  deferring  of  extradition 
where  the  accused  is  being  prosecuted  in  the  State  upon  which  requisition  is 
made,  for  an  offense  there  committed,  xintil  he  is  entitled  to  liberation.  See, 
for  example.  Art.  VI  treaty  with  Guatemala,  Feb.  27,  1903,  Malloy's  Treaties, 
1,881. 

Provision  is  sometimes  made  that  articles  found  in  the  possession  of  the 
accused  at  the  time  of  his  arrest,  whether  being  the  proceeds  of  the  crime  or 
offense,  or  which  may  be  material  as  evidence  in  making  proof  thereof,  shall, 

585 


§  324]         RIGHTS  AND   DUTIES   OF  JURISDICTION 

(7) 

§  324.   Requisition,     Mandate. 

The  formal  demand  for  the  extradition  of  a  fugitive  is  known 
as  the  requisition  and  must  emanate  from  the  executive  authority 
of  the  demanding  State.^  The  treaties  of  the  United  States  com- 
monly provide  that  requisition  shall  be  made  by  the  diplomatic 
agents  of  the  contracting  parties,  or  in  their  absence,  by  superior 
consular  officers.^  While  a  formal  requisition  is  always  a  condi- 
tion precedent  to  the  final  surrender  of  the  fugitive,  it  bears  no 
such  relation  to  his  arrest  or  to  the  judicial  proceedings  in  the 
United  States  preliminary  to  commitment.'^  Requisition  is  always 
to  bie  made  upon  the  foreign  offices  of  the  contracting  parties, 
and  hence,  when  the  demand  is  made  upon  the  United  States, 
it  must  be  addressed  to  the  Secretary  of  State.^ 

so  far  as  practicable,  according  to  the  laws  of  either  of  the  contracting  parties 
be  delivered  up  with  his  person  at  the  time  of  his  surrender,  due  respect  being 
had,  however,  for  the  rights  of  a  third  party  with  regard  to  such  articles. 
See,  for  example.  Art.  X,  of  treaty  with  Spain  of  June  15,  1904,  Malloy's 
Treaties,  II,  1715.  Also  documents  in  Moore,  Dig.,  IV,  405-406,  especially 
opinion  of  Mr.  Knox,  Atty.-Gen.,  23  Ops.  Attys.-Gen.,  440. 

^  Mr.  Gushing,  Atty.-Gen.,  7  Ops.  Atty.-Gen.,  6 ;  see,  also,  Moore,  Extra- 
dition, §  219. 

*  See,  for  example.  Art.  Ill  convention  with  France,  Jan.  6,  1909,  Charles' 
Treaties,  35. 

According  to  Art.  IX  of  the  treaty  with  Mexico  of  Feb.  22,  1899,  it  is  pro- 
vided that :  "In  the  case  of  crimes  or  offenses  committed  or  charged  to  have 
been  committed  in  the  frontier  States  or  Territories  of  the  two  contracting 
parties,  requisitions  may  be  made,  either  through  their  respective  diplomatic 
or  consular  agents  as  aforesaid,  or  through  the  chief  civil  authority  of  the 
respective  State  or  Territory,  or  through  such  chief  civil  or  judicial  authority 
of  the  districts  or  counties  bordering  on  the  frontier  as  may  for  this  purpose 
be  duly  authorized  by  the  said  chief  civil  authority  of  the  said  frontier  States 
or  Territories,  or  when,  from  any  cause,  the  civil  authority  of  such  State  or 
Territory  shall  be  suspended,  through  the  chief  military  officer  in  command 
of  such  State  or  Territory,  and  such  respective  competent  authority  shall 
thereupon  cause  the  apprehension  of  the  fugitive,  in  order  that  he  may  be 
brought  before  the  proper  judicial  authority  for  examination."  Malloy's 
Treaties,  I,  1188. 

See,  also,  Art.  Ill  of  convention  with  the  Netherlands,  Jan.  18,  1904, 
extending  to  the  island  possessions  and  colonies  of  the  contracting  parties 
the  extradition  treaty  of  June  2,  1887,  Malloy's  Treaties,  II,  1272;  also 
Art.  XIII  of  treaty  with  France  of  January  6,  1909,  respecting  the  requisi- 
tion for  the  surrender  of  a  fugitive  criminal  who  has  taken  refuge  in  a  colony 
or  foreign  possession  of  either  contracting  party,  Charles'  Treaties,  37. 

3  Provision  is  frequently  made,  as  in  Art.  IX  of  the  treaty  with  Nicaragua 
of  March  1,  190.5,  Malloy's  Treaties,  II,  1296,  for  the  provisional  detention 
of  the  fugitive  prior  to  the  presentation  of  a  formal  demand  for  his  surrender. 
See,  also,  Benson  v.  McMahon,  127  U.  S.  457;  In  re  Adutt,  55  Fed.  376; 
In  re  Orpen,  86  Fed.  760 ;   In  re  Schlippenbach,  164  Fed.  783. 

<  Mr.  Gushing,  Attv.-Gen.,  8  Ops.  Attvs.-Gen.,  40;  also  Mr.  Bonaparte, 
Attv.-Gen.,  July  10,  1908,  For.  Rel.  1908,"^595. 

Relative  to  applications  by  the  United  States  for  the  extradition  from 
foreign  countries  of  fugitives  from  justice,  see  general  circular  of  the  Depart- 
ment of  State,  October,  1892,  Moore,  Dig.,  IV,  356;    circular  relative  to  the 

586 


PROVISIONAL    DETENTION  [§325 

The  Federal  Courts  and  the  Department  of  State  seem  at  the 
present  time  to  be  agreed  that  the  provisions  of  the  statutory 
law  render  unnecessary  the  issuance  of  a  mandate  or  a  certificate 
of  requisition  by  the  Secretary  of  State  as  a  foundation  for  pro- 
ceedings in  the  United  States  with  a  view  to  the  arrest  or  com- 
mitment of  a  fugitive.^  Hence,  it  is  believed  that  the  provisions 
of  certain  treaties  indicating  that  judicial  proceedings  shall  be 
dependent  upon  the  exhibition  of  a  mandate  or  certificate  of  req- 
uisition are  rendered  unimportant.^ 

(8) 

§  325.   Provisional  Detention. 

Numerous  treaties  provide  for  the  detention  of  a  fugitive  on 
proper  application  prior  to  the  formal  requisition  for  surrender. 
Such  provision  is  commonly  followed  by  the  declaration  that 
the  fugitive  shall  be  released  from  custody,  unless  formal  requisi- 
tion together  with  the  documentary  proofs  be  made  within  a 
specified  period  after  the  date  of  arrest.^    As  the  Act  of  Congress 

extradition  of  fugitives  from  the  United  States  in  British  jurisdiction,  May, 
1890,  Moore,  Dig.,  IV,  359;  documents  contained  and  cited  in  Moore,  Dig., 
IV,  362-368,  relative  to  extradition  of  fugitives  from  Mexico. 

1  Benson  v.  McMahon,  127  U.  S.  457 ;  In  re  Adutt,  55  Fed.  376 ;  In  re 
Orpen,  86  Fed.  760;  In  re  Schhppenbach,  164  Fed.  783;  Ex  parte  Charlton, 
185  Fed.  880 ;  also  Mr.  Bayard,  Secy,  of  State,  to  Mr.  West,  Feb.  16,  1886, 
MS.  Notes  to  Great  Britain,  XX,  189,  Moore,  Dig.,  IV,  371. 

2  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Barca,  May  3,  1882,  MS. 
Notes  to  Spain,  X,  204,  Moore,  Dig.,  IV,  370;  Mr.  Gresham,  Secy,  of  State, 
to  Prince  Cantacuzene,  Russian  Minister,  Dec.  13,  1893,  MS.  Notes  to  Russia, 
VIII,  32,  Moore,  Dig.,  IV,  372. 

It  is  to  be  observed  that  Art.  VIII  of  the  treaty  with  Mexico  of  Feb.  22, 
1899,  provides  that  after  the  demanding  country  has  fulfilled  specified  re- 
quirements relative  to  requisition  and  documentary  proofs,  "the  proper  ex- 
ecutive authority  of  the  United  States  of  America,  or  of  the  United  Mexican 
States,  as  the  case  may  be,  shall  then  cause  the  apprehension  of  the  fugitive." 
Malloy's  Treaties,  I,  1187. 

'  The  conventions  of  the  United  States  providing  for  the  provisional  de- 
tention of  fugitives  are  not  uniform.  Thus,  for  example,  Art.  IV  of  that  with 
Chile  of  April  17,  1900,  declares  that  the  proper  course  in  the  United  States 
shall  be  "to  apply  to  a  judge  or  other  magistrate  authorized  to  issue  war- 
rants of  arrest  in  extradition  cases  and  present  a  complaint  on  oath,  as  pro- 
vided by  the  statutes  of  the  United  States. "  Malloy's  Treaties,  I,  194.  Others, 
such  as  Art.  IV  of  the  treaty  with  Cuba  of  April  6,  1904,  provide  that  a  com- 
plaint "shall  be  made  by  an  agent"  of  the  demanding  government  "before  a 
judge  or  magistrate  etc."  Malloy's  Treaties,  I,  369.  In  certain  other  con- 
ventions, such  as  Art.  IX  of  convention  with  Guatemala  of  February  27, 
1903,  it  is  declared  that  "each  government  shall  endeavor  to  procure  the 
provisional  arrest  of  such  criminal  and  to  keep  him  in  safe  custody"  for  a 
specified  period  of  time  to  await  the  production  of  documents  upon  which 
the  claim  for  extradition  is  founded.  Malloy's  Treaties.  I,  882.  It  is  not 
believed  that  this  provision  is  intended  to  contemplate  the  arrest  of  a  fugi- 
tive in  the  United  States  save  on  a  complaint  under  oath.  Nevertheless, 
it  is  significant  of  what  the  political  department  believes  to  be  a  sufficient 

587 


§325]  RIGHTS   AND   DUTIES   OF  JURISDICTION 

Is  considered  applicable  to  such  cases,  it  is  the  practice  in  the  United 
States  to  make  provisional  arrests  irrespective  of  the  existence 
of  appropriate  treaty  provisions  with  demanding  countries.' 
While,  therefore,  a  demanding  State  which  had  caused  the  pro- 
visional detention  of  a  fugitive  would  lack  the  right  to  complain 
that  its  treaty  was  violated,  if,  upon  its  own  failure  to  produce 
the  requisition  and  necessary  documentary  proofs  within  the 
time  agreed  upon  after  the  date  of  arrest,  the  fugitive  were  re- 
leased, it  is  not  believed  that  the  fugitive  himself  would,  under 
similar  circumstances,  be  necessarily  entitled  to  his  discharge  from 
custody,  if  it  appeared  that  the  effort  to  secure  his  extradition 
was  still  being  prosecuted  in  good  faith  by  the  State  from  whose 
territory  he  had  fled.^ 

(9) 
Interpretation 

(a) 
§  326.   The  General  Principle. 

Treaties  of  extradition  are  to  be  interpreted  by  the  same  pro- 
cesses that  are  applicable  to  other  international  agreements. 
There    is    always  involved  a  twofold  inquiry :    first,  respecting 

compliance  with  the  existing  law.  When  the  United  States  agrees  to  procure 
the  arrest  of  a  fugitive,  it  would  seem  to  undertake  that  its  own  officers  shall, 
under  certain  contingencies,  become  the  agents  of  the  demanding  government 
for  the  purpose  of  swearing  to  complaints. 

According  to  Art.  XIII  of  the  treaty  with  Paraguay  of  March  26,  1913, 
Treaty  Series,  No.  584,  it  is  agreed  that  upon  a  request  for  the  arrest,  de- 
tention or  extradition  of  a  fugitive,  the  legal  officers  of  the  country  where  the 
proceedings  are  had,  "shall  assist  the  officers  of  the  Government  demanding 
the  extradition  before  the  respective  judges  and  magistrates,  by  every  legal 
means  within  their  or  its  power." 

See  case  arising  in  1911,  where  the  Spanish  Consul  General  at  New  York 
was  unable  to  secure  the  provisional  arrest  and  detention  by  a  United  States 
Commissioner  of  certain  fugitives,  under  .^rt.  XI  of  the  existing  extradition 
treaty,  because  of  the  inability  of  the  complainant  to  file  a  sufficient  com- 
plaint. For.  Rel.  1911,  716-722.  It  may  be  observed  that  the  Depart- 
ment of  State  inclined  to  the  opinion  that  the  United  States  was  not  to  be 
regarded  as  having  failed  in  its  contractual  obligations  towards  Spain  by 
reason  of  the  inability  of  the  Consul  General  to  make  a  complaint  containing 
allegations  declared  bv  the  courts  of  the  United  States  to  be  essential. 

1  Mr.  Bavard.  Secv.  of  State,  to  Mr.  Parkhurst,  No.  18,  Jan.  28,  1889, 
For.  Rel.  1889,  50,  53,  Moore,  Dig.,  IV,  382;  Mr.  Moore,  Assist.  Secv.  of 
State,  to  the  Attornev-General,  Mav  26,  1898,  227  MS.  Dom.  Let.  651,  Moore, 
Dig.,  IV,  383.     See,  also,  Moore,  Extradition.  I,  pp.  395-407. 

2  See  comment  of  Prof.  Moore,  relative  to  a  communication  of  Mr.  Hill, 
Acting  Secy,  of  State,  to  Mr.  Aspiroz,  Mexican  Minister,  No.  174,  May  14, 
1901,  MS.  Notes  to  Mexican  Legation,  X.  585,  Moore,  Dig.,  IV,  384;  case 
of  extradition  of  one  H.  Garcia,  from  Mexico  to  the  United  States,  in  1910, 
involving  the  re-arrest  of  the  accused  after  the  expiration  of  the  forty-day  i 
detention  period,  For.  Rel.  1910,  723-729. 

588 


THE  GENERAL  PRrNCIPLE  [§  326 

the  standard  of  interpretation ;  secondly,  concerning  the  sources 
of  interpretation.^  Thus,  in  case  of  a  dispute,  proof  that  at  the 
time  of  negotiation  the  contracting  parties  did  in  fact  understand 
that  a  certain  term  had  a  particular  signification,  whatever  that 
may  be,  should  be  decisive.^  The  observance  by  the  courts  of 
so-called  rules  of  construction  is  not  believed  to  be  in  defiance 
of  this  requirement.  It  simply  indicates  that,  in  the  absence  of 
evidence  to  the  contrary,  a  single  reasonable  inference  must  be 
deduced  from  the  conduct  of  the  parties  as  expressed  in  their 
agreement.  It  does  not  signify  that  evidence  showing  a  contrary 
understanding  should  be  rejected  or  unheeded.  When,  however, 
under  similar  circumstances,  there  is  habitual  failure  to  offer  such 
evidence,  rules  of  construction  become  more  certain  of  applica- 
tion, and  their  true  nature  is  obscured  by  reason  of  the  frequency 
with  which  they  are  observed.^ 

When  the  municipal  laws  of  a  contracting  State  establish  the 
procedure  to  be  followed  in  extradition  cases,  in  order  to  facilitate 
the  operation  of  its  treaties,  it  must  be  inferred  that  the  require- 
ments of  those  laws  were  had  in  contemplation  at  the  time  of  nego- 
tiation, and  that,  in  the  absence  of  evidence  to  the  contrary,  there 
has  been  no  attempt  to  nullify  them  by  an  undertaking  incon- 
sistent therewith.  Thus,  it  is  generally  believed  that  the  extradi- 
tion treaties  of  the  United  States,  however  differing  in  scope  and 
phraseology,  are  always  concluded  with  reference  to  the  existing 
Acts  of  Congress,  and  are  therefore  to  be  construed  in  harmony 
therewith,  and  that  the  agreements  necessarily  indicate  the  con- 
struction placed  upon  the  local  laws  by  the  Department  of  State."^ 

The  Supreme  Court  of  the  United  States  is  emphatic  in  its 
opinion  that  there  should  be  imputed  to  the  contracting  parties 
the  intention  that  a  technical  non-compliance  with  some  formality 
of  criminal  procedure  should  not  be  allowed  to  stand  in  the  way 
of  the  discharge  of  a  contractual  obligation  expressed  in  an  extra- 
dition treaty.^ 

1  Interpretation  of  Treaties,  infra,  §  530;  also  Wigmore,  Evidence,  IV,  3470. 

-  This  is  substantially  the  position  taken  by  the  United  States  as  to  the 
interpretation  of  its  extradition  treaty  with  Italy,  of  Feb.  8,  1868.  See 
Moore,  Extradition,  I,  §  141. 

^  It  may  be  observed  that  under  certain  circumstances  a  national  court, 
as  distinguished  from  an  international  tribunal,  may  feel  itself  fettered  in  the 
task  of  interpretation  by  the  position  taken  by  the  political  department  of 
its  own  government,  even  subsequent  to  the  time  of  negotiation.  See  Charl- 
ton V.  Kelly,  229  U.  S.  447,  476.  Compare,  Ex  parte  Charlton,  185  Fed.  880. 
886. 

*  Johnson  v.  Browne,  205  U.  S.  309. 

^  Grin  v.  Shine,  187  U.  S.  181,  184,  where  Brown,  J.,  speaking  for  a  unani- 

589 


§  326]        RIGHTS   AND    DUTIES   OF  JURISDICTION 

Where  a  treaty  lacks  any  specific  reference  to  the  matter,  it  is 
generally  believed,  as  a  reasonable  rule  of  construction,  that  the 
agreement  should  take  effect  from  the  date  of  signature,  and  thus 
operate  retroactively.^ 

(b) 

§  327.    Conviction  Par  Contumace. 

The  agreement  expressed  in  numerous  conventions  ^  to  deliver 
up  persons  convicted  of  crimes  is  interpreted  both  by  the  political 
and  judicial  departments  of  the  United  States  as  applicable  solely 

mous  Court  declared :  "In  the  construction  and  carrying  out  of  such  treaties 
the  ordinary  technicalities  of  criminal  proceedings  are  applicable  only  to  a 
limited  extent.  Foreign  Powers  are  not  expected  to  be  versed  in  the  niceties 
of  our  criminal  laws,  and  proceedings  for  a  surrender  are  not  such  as  put  in 
issue  the  life  or  liberty  of  the  accused.  They  simply  demand  of  him  that  he 
shall  do  what  all  good  citizens  are  required,  and  ought  to  be  willing  to  do, 
viz.,  submit  themselves  to  the  laws  of  their  country.  Care  should  doubtless 
be  taken  that  the  treaty  be  not  made  a  pretext  for  collecting  private  debts, 
wreaking  individual  malice,  or  forcing  the  surrender  of  political  offenders; 
but  where  the  proceeding  is  manifestly  taken  in  good  faith,  a  technical  non- 
compliance with  some  formality  of  criminal  procedure  should  not  be  allowed 
to  stand  in  the  way  of  a  faithful  discharge  of  our  obligations.  Presumably 
at  least,  no  injustice  is  contemplated,  and  a  proceeding  which  may  have  the 
effect  of  relieving  the  country  from  the  presence  of  one  who  is  likely  to  threaten 
the  peace  and  good  order  of  the  community,  is  rather  to  be  welcomed  than 
discouraged." 

See,  also,  Benson  v.  McMahan,  127  U.  S.  457,  466-467 ;  Wright  v.  Henkel, 
190  U.  S.  40,  57;  Pierce  v.  Creecy,  210  U.  S.  387,  405.  Holmes,  J.,  in 
the  opinion  of  the  Court  in  Glucksman  v.  Henkel,  221  U.  S.  508,  512,  de- 
clared:  "It  is  common  in  extradition  cases  to  attempt  to  bring  to  bear  all 
the  factitious  niceties  of  a  criminal  trial  at  common  law.  But  it  is  a  waste 
of  time.  For  while  of  course  a  man  is  not  to  be  sent  from  the  country  merely 
upon  demand  or  surmise,  yet  if  there  is  presented,  even  in  somewhat  un- 
technical  form  according  to  our  ideas,  such  reasonable  ground  to  suppose 
him  guilty  as  to  make  it  proper  that  he  should  be  tried,  good  faith  to  the  de- 
manding government  requires  his  surrender."  Also  United  States  v.  Greene, 
146  Fed.  766. 

1  Moore,  Extradition,  I,  §  86,  citing  In  re  Angelo  de  Giacomo,  12  Blatchf. 
391,  also  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Seward,  Jan.  30,  1880,  MSS. 
Dom.  Let. 

See,  also,  Mr.  Hay,  Secy,  of  State,  to  Mr.  Aspiroz,  Mexican  Minister, 
No.  17,  July  11,  1899,  MS.  Notes  to  Mexican  Legation,  X,  469,  Moore.  Dig., 
IV,  269,  concerning  date  of  taking  effect  of  the  extradition  treaty  with  Mexico, 
Feb.  22,  1899. 

Most-Favored-Nation  Clause.  It  is  generally  believed  that  extradi- 
tion treaties  do  not  fall  within  the  most-favored-nation  clause.  Mr.  Gush- 
ing, Atty.-Gen.,  6  Ops.  Attys.-Gen.,  148,  155;    Moore,  Dig.,  V,  311. 

Expenses.  "Every  treaty  of  extradition  to  which  the  United  States  is  a 
party  contains  a  provision  that  the  expenses  of  extradition  shall  be  borne  by 
the  demanding  government,  and  it  is  the  practice  for  the  demanding  govern- 
ment to  defray  the  expenses  of  the  proceedings  whether  the  fugitive  is  even- 
tually surrendered  or  not."  Frederick  Van  Dyne  in  Cyc.  Law  &  Proc,  XIX, 
79. 

2  See,  for  example.  Art.  I  of  convention  with  Italy,  March  23,  1868,  Mal- 
loy's  Treaties,  I,  967;  also  Art.  I  of  treaty  with  San  Marino,  Jan.  10,  1906, 
id.,  II,  1598. 

590 


AREAS    COVERED    BY    TREATY  [§  328 

to  a  fugitive  whose  conviction  took  place  while  he  was  in  the 
custody  of  the  demanding  government.^  In  case  the  trial  and 
conviction  are  subsequent  to  the  escape  of  the  accused,  so  that 
the  judicial  decree  is  yar  contumace,  he  is  regarded  as  one  merely 
charged  with  the  commission  of  the  crime.  Hence  in  the  judicial 
proceedings  following  the  requisition  for  his  surrender,  such  evi- 
dence of  criminality  must  be  offered  as  is  required  in  any  case  of 
one  charged  with  the  commission  of  an  extraditable  offense.^ 

(10) 
§  328.    Scope  of  Treaties  with  Respect  to  Areas  Covered. 

The  extradition  treaties  of  the  United  States  commonly  declare 
that  a  person  whose  surrender  may  be  demanded  shall  be  either 
charged  with  or  convicted  of  an  offense  committed  in  the  "juris- 
diction "  of  one  of  the  contracting  parties,  and  who  seeks  an  asylum 
or  who  may  be  found  within  the  "territories"  of  the  other .^ 

The  term  jurisdiction  appears  to  have  been  employed  to  desig- 
nate any  place  lawfully  subject  to  the  control  for  purposes  of 
jurisdiction  of  the  demanding  State  at  the  time  when  the  act  was 
committed,  such  as  a  public  vessel,'^  or  a  merchant  vessel  on  the 
high  seas,^  as  well  as  the  national  domain.^      On  the  other  hand, 

1  Mr.  Blaine,  Secy,  of  State,  to  the  Minister  of  the  Netherlands,  May  6, 
1889,  relative  to  the  Case  of  C.  E.  Plugge,  Moore,  Extradition,  I,  133 ;  tele- 
gram of  the  Acting  Secretary  of  State,  to  Mr.  Leishman,  Ambassador  to  Tur- 
key, Oct.  10,  1907,  For.  Rel.  1907,  II,  1070.  See,  also.  Ex  parte  Fudera, 
162  Fed.  591,  in  which  the  learned  judge  cites  Moore,  Extradition,  I,  §  102; 
"Report  of  a  Recent  Extradition  Case,  re  Macaluso  ",  III.  Law  R.,  VII,  237; 
Ex  parte  La  Mantia,  206  Fed.  330. 

2  That  this  requirement  has  not  always  been  appreciated  by  demanding 
governments  is  apparent  from  Ex  parte  Fudera,  162  Fed.  591,  and  Ex  parte 
La  Mantia,  206  Fed.  330. 

3  See,  for  example,  Art.  I  convention  with  France,  Jan.  6,  1909,  Charles' 
Treaties,  33. 

*  President  Adams,  to  Mr.  Pickering,  Secy,  of  State,  May  21,  1799,  relative 
to  the  ca.se  of  one  Nash,  ahas  Robbins,  8  John  Adams's  Works,  651,  Moore, 
Dig.,  IV,  281-282;  Moore,  Extradition,  I,  §§  105  and  106,  concerning 
cases  respectively  of  Kent  and  of  Markham. 

5  Mr.  Cushing,  Atty.-Gen.,  8  Ops.  Attys.-Gen.,  73,  84.  See,  also,  Mr. 
Buchanan,  Minister  to  England,  to  Mr.  Marcv,  Secy,  of  State,  Aug.  3,  1855, 
67  MS.  Despatches  from  Great  Britain,  Moore,  Dig.,  IV,  282. 

In  a  case  of  concurrent  jurisdiction  such  as,  for  example,  where  an  offense 
was  committed  on  a  merchant  vessel  of  the  demanding  State  on  the  high 
seas,  resulting  in  the  death  of  the  victim  after  the  vessel  reached  a  port  of  the 
State  on  which  requisition  was  made,  the  latter  would  doubtless  be  justified 
in  asserting  itself  the  right  to  prosecute  the  offender,  and  in  declining  to  sur- 
render him,  if  its  authorities  saw  fit  to  take  such  a  course.  Mr.  Fish,  Secy. 
of  State,  to  Mr.  Watson,  Aug.  15,  1874,  MS.  Notes  to  Great  Britain,  XVI, 
413,  Moore,  Dig.,  IV,  281.  See.  also,  Sternaman  v.  Peck,  83  Fed.  690.  Com- 
pare situation  in  case  of  Peter  Lynch,  Moore,  Extradition,  I,  §  107. 

«  See  the  decision  of  Lowell,  J.,  in  hi  re  Taylor,  118  Fed.  196,  and  the  com- 
ment thereon  in  Moore,  Dig.,  IV,  280. 

591 


§  328]        RIGHTS   AND   DUTIES   OF   JURISDICTION 

an  offense  perpetrated  by  a  national  of  a  demanding  State  in 
foreign  territory  not  subject  to  its  control,  is  not  believed  to  have 
been  committed  within  the  jurisdiction  of  that  State,  even  though 
it  asserts  the  right  to  punish  the  offender  for  his  misconduct  as  an 
act  in  defiance  of  its  own  commands.^ 

The  term  "territories"  as  descriptive  of  the  place  where  a  fugi- 
tive seeks  asylum  or  is  found,  is  regarded  as  referring  to  a  place 
subject  to  the  control  of  the  State  upon  which  requisition  is  made, 
such  as  its  own  domain,  or  foreign  territory  under  its  military 
occupation ,2  or  a  foreign  merchant  vessel  within  its  harbors,^  or 
its  own  public  vessels.  Difficulties  that  may  arise  respecting 
the  surrender  of  the  fugitive  when  he  is  found  on  a  public  vessel,^ 
or  concerning  his  arrest  when  he  is  on  board  a  foreign  merchant 
vessel  in  a  port  of  the  State  upon  which  requisition  is  made,^  are 
unrelated  to  the  question  as  to  whether  the  case  falls  within  the 
scope  of  a  particular  treat3^ 

1  Williams,  Att.y.-Gen.,  14  Ops.  Attys.-Gen.,  281,  re  Case  of  Carl  Vogt; 
compare  In  re  Stupp,  11  Blatchf.  124. 

"It  has  been  announced  by  the  Department  of  State  that  an  offense  com- 
mitted in  a  country  where  extraterritorial  jurisdiction  is  exercised  by  foreign 
Powers  is  not  committed  within  the  jurisdiction  of  such  Powers  in  the  sense 
of  the  extradition  treaties,  so  as  to  give  the  government  of  the  country  of  which 
the  offender  is  a  citizen  or  subject  the  right  to  demand  his  surrender  from 
the  territory  of  the  United  States,"  Moore,  Extradition,  I,  §  108,  quoting  Mr. 
Cadwalader,  Acting  Secv.  of  State,  to  Mr.  Bingham,  American  Minister  to 
Japan,  Aug.  18,  1875,  For.  Rel.  1875,  II,  821. 

2  Report  of  Jan.  9,  1900,  Magoon's  Reports,  523,  Moore,  Dig.,  IV,  285; 
letter  of  the  Secy,  of  War,  Aug.  17,  1900,  quoted  in  Mr.  Hill,  Acting  Secy, 
of  State,  to  Mr.  Aspiroz,  Mexican  Minister,  No.  101,  Sept.  4,  1900,  MS. 
Notes  to  Mexican  Legation,  X,  537,  Moore,  Dig.,  IV,  285. 

It  is  not  believed  that  the  term  "territories"  has  reference  to  a  foreign 
country  where  rights  of  extraterritorial  jurisdiction  are  exercised  by  the 
State  on  which  requisition  is  made.  Mr.  Hunter,  Second  Assist.  Secy,  of 
State,  to  Mr.  G.  F.  Seward,  Consul-General,  Aug.  31,  1874,  For.  Rel.  1874, 
338;  Mr.  Cadwalader,  Assist.  Secy,  of  State,  to  same,  Oct.  23,  1874,  id., 
34.7 ;   Moore,  Extradition,  I,  §  109. 

3  In  re  Newman,  79  Fed.  622. 

*  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Denby,  Minister  to  China,  No.  680, 
Dec.  7,  1891,  For.  Rel.  1892,  74,  Moore,  Dig.,  IV,  283. 

*  Mr.  Lincoln,  Minister  to  England,  to  Mr.  Blaine,  Secv.  of  State,  No. 
480,  June  24,  1891,  MS.  Despatches  from  England,  Moore,  Dig.,  IV,  284. 

DoAfESTic  Legislation  for  Extradition  to  Foreign  Territory  under 
Military  Occupation.  The  enactment  by  a  State  of  a  law  (such  as  the 
amendment  by  the  Act  of  Congress  of  June  6,  1900,  31  Stat.  656,  of  Rev. 
Stat.  §  5270)  providing  for  the  arrest  within  its  territorj^  of  persons  found 
therein  after  having  violated  certain  criminal  laws  within  foreign  territory 
occupied  by  or  under  the  control  of  the  State,  and  establishing  appropriate 
procedure  for  the  surrender  of  such  persons  to  the  military  governor  of  such 
territory,  is  merely  an  assertion  of  a  right  of  jurisdiction  by  the  sovereign  in 
actual  control  of  the  place  of  refuge,  and  that  also  where  the  crime  was  com- 
mitted. It  is  not  based  upon  treaty.  Nor  is  it  responsive  to  any  interna- 
tional obligation.  Such  legislation  is  essentially  domestic  in  character.  See 
Neely  v.  Henkel,  180  U.  S.  109,  in  which  the  Act  of  June  6,  1900,  was  applied 

592 


IN  GENERAL  [§  330 

(11) 
§  329.   Fugitives  from  Justice. 

The  treaties  of  the  United  States  are  deemed  to  apply  "not 
only  to  persons  seeking  an  asylum  here  professedly,  but  to  such  as 
may  be  found  in  the  country."  ^  The  reasons  which  may  induce 
offenders  to  enter  are  unimportant.^  There  is,  however,  a  dis- 
position on  the  part  of  the  United  States  to  make  the  requirement 
that  the  person  found  within  its  territories  shall  have  entered 
therein  after  having  been  himself  within  the  "jurisdiction"  of 
the  State  demanding  his  surrender.  Consequently,  a  person 
who  while  in  the  United  States  and  without  leaving  its  domain, 
participated  in  a  conspiracy  to  commit  murder  in  that  of  a  foreign 
State,  within  whose  territory  the  conspiracy  was  carried  into 
effect,  would  not  be  regarded  as  liable  to  extradition  upon  the 
demand  of  that  State  .^ 

d 

Some  Aspects  of  Procedure  in  the  United  States 

(1) 
§  330.   In  General. 

The  design  of  the  statutory  law  of  the  United  States  in  relation 
to  extradition  has  been  to  facilitate  rather  than  hinder  the  opera- 
tion of  treaties  which  might  be  concluded.'*     The  procedure  estab- 

to  Cuba,  while  occupied  by  the  United  States.  See,  also,  Mr.  Hay  to  Mr.  von 
Mumm,  Oct.  25,  1899,  For.  Rel.  1899,  318-319,  Moore,  Dig.,  IV,  265-266. 

The  Panama  Canal  Act  of  August,  1912,  extends  the  operation  of  the 
extradition  treaties  of  the  United  States  to  the  territory  embraced  within  the 
Isthmian  Canal  Zone.     Session  Laws,  62  Cong.,  2  Sess.,  1912,  p.  569. 

^  The  language  in  the  text  is  that  employed  in  the  caption  of  the  opinion 
by  Mr.  Gushing,  Atty.-Gen.,  8  Ops.  Attys.-Gen.,  306,  cited  in  Moore,  Dig., 
IV,  286. 

2  See  In  re  Ezeta,  62  Fed.  972,  978. 

'  Mr.  Hav,  Secy,  of  State,  to  Baron  Fava,  Italian  Ambassador,  No.  654, 
March  8,  1901,  MS.  Notes  to  Italian  Legation,  IX,  508,  Moore,  Dig.,  IV, 
286. 

*  The  legislation  of  the  United  States  is  embraced  in  Rev.  Stat.  §§  5270- 
5279,  constituting  title  LXVI,  and  in  the  Act  of  Aug.  3,  1882,  Chap.  378, 
22  Stat.  215,  in  the  Act  of  June  6,  1900,  Chap.  793,  31  Stat.  656,  and  in  that 
of  June  28,  1902,  Chap.  1301,  32  Stat.  475.  An  Act  of  Feb.  6,  1905,  Chap. 
454,  33  Stat.  698,  made  application  of  the  provisions  of  the  Revised  Statutes 
for  the  delivery  of  fugitives  as  between  a  foreign  country  and  the  Philippine 
Islands.  The  existing  statutory  law  is  embraced  in  U.  S.  Comp.  Stat.  1918, 
§§  10110-10128. 

See,  also,  the  British  Extradition  Act  of  August  7,  1870,  33  &  34  Vict. 
c.  52  ;  also  Canadian  Extradition  Act,  of  1906,  chap.  152  R.  S.  and  the  amend- 
ment thereof  of  May  19,  1909,  8  &  9  Edw.  7,  c.  14. 

593 


§3301        RIGHTS  AND   DUTIES   OF  JURISDICTION 

lished  has  proved  to  be  fairly  well  adapted  to  such  an  end.  Other 
contracting  States  have  generally  had  little  reason  or  disposition 
to  make  complaint.^  Inasmuch  as  the  surrender  of  fugitives 
found  within  American  territory  calls  for  a  strict  observance  of 
the  local  law,  the  interpretation  given  it  by  the  Department  of 
State,  as  well  as  by  the  courts,  deserves  attention.  What,  there- 
fore, they  believe  is  required  in  normal  situations  confronting  the 
representatives  or  agents  of  foreign  demanding  governments  is 
here  examined. 


(2) 

§  331.    Magistrates. 

Any  Federal  judge,  or  commissioner  authorized  to  do  so  by 
any  of  the  courts  of  the  United  States,  or  a  "judge  of  a  court  of 
record  of  general  jurisdiction  of  any  State",  may  upon  the  proper 
complaint  made  under  oath,  issue  a  warrant  for  arrest,  and 
upon  the  apprehension  of  the  fugitive,  hear  the  evidence  of  crimi- 
nality, and  act  as  a  committing  magistrate.^  Such  magistrate 
is  deemed  to  possess  broadest  powers  with  reference  to  the  hear- 
ings had  before  him.  Thus  he  may  use  his  discretion  with  respect 
to  the  matter  of  adjournment ;  ^  and  this  appears  in  practice  to 
be  true  whether  the  prisoner  is  arrested  provisionally  to  await 
the  arrival  of  a  requisition  and  depositions,^  or  is  held  pursuant 
to  a  formal  demand  for  surrender  and  following  the  receipt  of 
documentary  evidence.  It  is  common  to  allow  ample  oppor- 
tunity for  the  translation  of  depositions  prepared  in  a  foreign 


1  Declares  Professor  Moore:  "Whether  an  extradition  treaty  requires 
legislation  for  its  execution  by  the  Government  of  the  United  States  has 
become  a  speculative  question,  as  general  legislation  on  the  subject  is  not 
provided.  By  the  Constitution,  however,  treaties  are  supreme  laws, 
and  as  such  are  directly  binding  upon  the  courts,  as  well  as  upon  the  execu- 
tive ;  and  while  they  may,  by  reason  of  the  generality  of  their  terms,  or  by 
reason  of  an  express  reservation,  require  to  be  supplemented  by  legislation, 
an  act  of  the  legislature  is  not  necessary  to  give  them  legal  force."  Digest, 
IV,  270. 

2  Rev.  Stat.  §  5270,  U.  S.  Comp.  Stat.  1918,  §  10110.  The  judge  before 
whom  the  complaint  is  sworn  need  not  make  the  warrant  returnable  to  him- 
self.    Grin  v.  Shine,  187  U.  S.  181,  187. 

3  Rice  V.  Ames,  180  U.  S.  371 ;  also  Mr.  Cushing,  Atty.-Gen.,  6  Ops.  Attys.- 
Gen.,91. 

*  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Parkhurst,  No.  18,  Jan.  28,  1889,  For. 
Rel.  1889,  50,  53,  Moore,  Dig.,  IV,  382 ;  Comment  in  Moore,  Dig.,  IV,  384, 
on  communication  of  Mr.  Hill,  Acting  Secy,  of  State,  to  Mr.  Aspiroz,  Mexi- 
can Minister,  No.  174,  May  14,  1901,  MS.  Notes  to  Mexican  Legation,  X, 
585. 

594 


MAGISTRATES  [§  331 

language.     An   English   translation   must  be  furnished   by   the 
demanding  government  or  its  agents.^ 

The  proceeding  before  the  magistrate  is  not  to  be  regarded : 

as  in  the  nature  of  a  final  trial  by  which  the  prisoner  could 
be  convicted  or  acquitted  of  the  crime  charged  against  him, 
but  rather  of  the  character  of  those  preliminary  examinations 
which  take  place  every  day  in  this  country  before  an  examining 
or  committing  magistrate  for  the  purpose  of  determining  whether 
a  case  is  made  out  which  will  justify  the  holding  of  the  accused, 
either  by  imprisonment  or  under  bail,  to  ultimately  answer 
to  an  indictment,  or  other  proceeding,  in  which  he  shall  be 
finally  tried  upon  the  charge  made  against  him.^ 

Hence,  as  will  be  observed  later,  defensive  testimony,  by  way 
of  confession  and  avoidance,  becomes  immaterial.  The  inquiry 
before  the  magistrate  is  never  whether  there  is  justification  for  the 
conduct  of  the  accused,  but  whether  there  is  reason  to  believe  that 
he  has  committed  or  has  been  convicted  of  the  offense  charged.' 

While  there  is  some  authority  indicating  that  in  very  excep- 

1  In  re  Henrich,  5  Blatchf.  Il4,  426  ;  Mr.  Conrad,  Acting  Atty.-Gen.,  21  Ops. 
Attys.-Gen.,  428 ;  Mr.  Hay,  Secy,  of  State,  to  Mr.  Wilde,  No.  19,  March  20, 
1901,  MS.  Notes  to  Argentine  Leg.  VII,  74,  cited  in  Moore,  Dig.,  IV,  375. 

Declared  Mr.  Adee,  Acting  Secy,  of  State,  in  a  communication  to  Mr.  Wil- 
son, Ambassador  to  Mexico,  Nov.  2,  1910:  "The  translation  of  papers  in  ex- 
tradition cases  is  not  a  service  which  the  surrendering  Government  should 
be  called  upon  to  perform.  The  demanding  Government  should  furnish 
translations  of  the  documents,  and  the  cost  of  translation  is  one  of  the  items 
of  the  expenses  of  extradition,  to  be  borne  by  the  Government  seeking  the 
extradition."     For.  Rel.  1910,  733. 

Relative  to  the  competency  of  the  translation,  see  Ex  parte  Zentner,  188 
Fed.  344,  347. 

2  Benson  v.  McMahon,  127  U.  S.  457,  463 ;  also  Mr.  Olney,  Secy,  of  State, 
to  Mr.  Townsend,  Nov.  13,  1896,  213  MS.  Dom.  Let.  680,  Moore,  Dig.,  IV, 
390. 

3  Ex  parte  Charleton,  185  Fed.  880,  888,  where  the  learned  judge  de- 
clared: "The  duty  of  the  committing  magistrate  is  confined  to  determining: 
First,  whether  such  warrant  or  certificate  has  been  issued ;  second,  whether 
the  offense  charged  against  the  accused  is  extraditable  under  the  treaty ; 
third,  whether  the  person  brought  before  him  is  the  one  accused  of  such 
crime ;  and,  fourth,  whether  there  is  a  probable  cause  for  holding  the  ac- 
cused for  trial,  the  evidence  in  that  respect  to  be  such  as,  according  to  the  law 
of  the  State  in  which  the  accused  is  apprehended,  would  be  suflfieient  to  com- 
mit him  for  trial." 

Commitment.  §  5270  Rev.  Stat,  provides  that  if  upon  a  hearing,  the 
magistrate  "deems  the  evidence  sufficient  to  sustain  the  charge  under  the 
provisions  of  the  proper  treaty  or  convention,  he  shall  certify  the  same,  to- 
gether with  a  copy  of  all  the  testimony  taken  before  him,  to  the  Secretary  of 
State,  that  a  warrant  may  issue  upon  the  requisition  of  the  proper  authorities 
of  such  foreign  government,  for  the  surrender  of  such  person,  according  to  the 
stipulations  of  the  treaty  or  convention ;  and  he  shall  issue  his  warrant  for 
the  commitment  of  the  person  so  charged  to  the  proper  jail,  there  to  remain 
until  such  surrender  shall  be  made." 

595 


§  331]        RIGHTS  AND   DUTIES   OF  JURISDICTION 

tional  cases,  the  prisoner  may  be  released  on  bail/  the  Supreme 
Court  of  the  United  States  has  declared  that  such  release  cannot  be 
permitted  after  an  order  of  commitment.^ 

(3) 
Complaint 

(a) 
§  332.   Authority. 

The  complaint  may  be  made  by  any  one  having  the  authority 

1  In  re  Mitchell,  171  Fed.  289.  Corn-pare  weU-considered  editorial  "Bail  in 
Extradition  Cases",  Am.  J.,  IV,  422. 

-  Wright  V.  Henkel,  190  U.  S.  40,  62,  where  Chief  Justice  Fuller  declared : 
"The  demanding  government,  when  it  has  done  all  that  the  treaty  and  the 
law  require  it  to  do,  is  entitled  to  the  delivery  of  the  accused  on  the  issue  of 
the  proper  warrant,  and  the  other  government  is  under  obligation  to  make 
the  surrender ;  an  obligation  which  it  might  be  impossible  to  fulfill  if  release 
on  bail  were  permitted.  The  enforcement  of  the  bond,  if  forfeited,  would 
hardly  meet  the  international  demand ;  and  the  regaining  of  the  custody  of 
the  accused  obviously  would  be  surrounded  with  serious  embarassments. 
And  the  same  reasons  which  induced  the  language  used  in  the  statute  would 
seem  generally  applicable  to  release  pending  examination." 

Warrant  and  Arrest.  —  The  following  statement  of  law  is  taken  from 
Moore  on  Extradition,  I,  chap.  13,  supplemented  by  certain  decisions  rendered 
since  its  pubhcation.  The  validity  of  the  warrant  of  arrest  depends  upon 
the  sufficiency  of  the  complaint.  The  warrant  must  show  the  authority  of  the 
magistrate.  If  he  is  a  United  States  Commissioner  authorized  to  act  in  ex- 
tradition cases,  that  fact  must  be  set  out.  See  In  re  Farez,  7  Blatchf.  345  ;  In 
re  Kelley,  25  Fed.  R.  268.  The  warrant  should  set  forth  the  offense  charged 
in  conformity  with  the  words  of  the  treaty  relied  upon ;  and  it  should  in 
substance  at  least  correspond  with  the  allegations  of  the  complaint.  In  re 
Macdonnell,  11  Blatchf.  79,  88;  Castro  v.  De  Uriarte,  16  Fed.  R.  93.  While 
a  warrant  of  arrest  may  run  throughout  the  United  States,  the  accused  must 
be  taken  before  the  proper  magistrate  in  a  State  where  the  arrest  is  made, 
and  nearest  to  that  place.  Pettit  v.  Walshe,  194  U.  S.  205.  Concerning  the 
different  practice  prior  thereto,  .see,  particularly,  Moore,  Extradition,  I,  §  304 
and  cases  there  cited.  The  discharge  of  the  prisoner  by  virtue  of  a  writ  of 
habeas  corpus  does  not  necessarily  prevent  his  re-arrest  pursuant  to  a  new 
complaint  and  warrant.  Opinion  of  Coffey,  Acting  Atty.-Gen.,  10  Op-;. 
Attys.-Gen.,  501;  nor  would  the  discharge  of  the  accused  by  reason  of  the 
insufficiency  of  the  evidence,  either  by  the  committing  magistrate  or  the 
Secretary  of  State  operate  as  a  bar,  in  case  the  demanding  government  should 
be  able  subsequently^  to  present  the  necessary  evidence  of  criminality.  Opin- 
ion of  Cushing,  Attv.-Gen.,  6  Ops.  Attvs.-Gen.,  91 ;  Opinion  of  Coffev,  Acting 
Atty.-Gen.,  10  Ops.  Attvs.-Gen.,  501;  In  re  Macdonnell,  11  Blatchf.  170; 
In  re  Kelly,  26  Fed.  R.  852 ;  ex  parte  Schorer,  195  Fed.  R.  334. 

Concerning  the  distinction  between  the  illegality  of  the  attempt  to  with- 
draw from  the  custody  of  the  court  by  a  second  warrant  of  arrest,  a  prisoner 
held  by  a  marshal  after  the  issuance  of  a  writ  of  habeas  corpus,  and  the  le- 
gality of  the  service  of  a  second  warrant  issued  pending  the  proceedings  be- 
fore the  United  States  Commissioner,  but  served  subsequent  to  the  discharge 
of  the  prisoner  by  such  commissioner,  see  In  re  Macdonnell,  11  Blatchf.  170, 
as  compared  with  In  re  Farez,  7  Blatchf.  345;  also  In  re  Fergus,  30  Fed.  R. 
607. 

Respecting  the  arrest  by  a  United  States  marshal  of  the  Salvadorean  ref- 
ugees on  the  U.  S.  S.  Bennington  in  the  harbor  of  San  Francisco  in  1894,  see 

596 


INFORMATION   AND    BELIEF   OF   COMPLAINANT     [§  333 

of  the  demanding  government.^  Complaints  are  commonly  made 
by  consular  officers,  whose  official  character  removes  the  necessity 
of  affirmative  proof  of  authority.-  When  a  person  other  than  a 
diplomatic  or  consular  representative  is  the  complainant,  his 
authority  to  act  in  behalf  of  the  demanding  government  must  be 
shown  at  some  stage  of  the  judicial  proceedings.  It  need  not, 
however,  be  disclosed  in  the  complaint  itself.^ 


(b) 

§  333.   Information  and  Belief  of  Complainant. 

A  complaint  under  Section  5270  of  the  Revised  Statutes  need 
not  be,  and  rarely  is,  sworn  to  by  a  person  having  actual  knowl- 
edge of  the  facts  set  out  therein.  It  suffices  if  it  is  based  upon 
information  and  belief.'*  It  must  appear  to  the  magistrate  called 
upon  to  issue  the  warrant  of  arrest  that  the  sources  of  the  com- 
plainant's information  and  belief  justify  much  more  than  suspicion 
of  the  truth  of  what  is  charged.''  The  complaint  itself  should 
indicate  that  the  complainant  has  been  informed  through  a  re- 
sponsible governmental  channel  that  criminal  proceedings  have 
been  instituted  against  the  accused  by  the  demanding  govern- 

Moore,  Dig.,  IV,  .380,  and  documents  there  cited.  As  to  the  arrest,  pursuant 
to  the  appHcation  of  the  British  government,  of  a  fugitive  on  a  British 
vessel  in  an  American  port  bv  American  authorities,  see  in  re  Newman,  79 
Fed.  622,  Moore,  Dig.,  IV,  381. 

That  an  illegal  arrest  by  State  or  municipal  authorities  does  not  neces- 
sarily affect  the  jurisdiction  of  the  United  States  Commissioner,  is  empha- 
sized in  the  case  of  Kelly  v.  Griffin,  241  U.  S.  6. 

1  In  re  Kelly,  26  Fed.  852,  856;  In  re  FerreUe,  28  Fed.  878.  In  a  dictum 
in  Grin  v.  Shine,  187  U.  S.  181,  19.3,  a  person  qualified  to  make  a  com- 
plaint (when  not  "the  official  representative  of  the  foreign  government" 
such  as  its  consular  officer)  is  described  as  one  "acting  under  the  authority 
of  the  foreign  government,  having  knowledge  of  the  facts."  It  may  be  doubted 
whether,  at  least  in  practice,  the  possession  of  such  knowledge  is  made  the 
test  of  the  capacity  of  the  complainant  when  he  is  not  the  official  representa- 
tive of  such  government. 

In  view  of  a  provision  expressed  in  certain  treaties,  such  as  in  Art.  IX  of 
that  with  Nicaragua  of  March  1,  1905,  Malloy's  Treaties,  II,  1296,  that  "each 
government  shall  endeavor  to  procure  the  provisional  arrest"  of  the  fugitive 
under  specified  circumstances,  it  would  appear  to  be  the  duty  of  the  Govern- 
ment of  the  United  States,  if  the  treaty  were  properly  invoked,  to  designate 
an  official  to  make  the  complaint.  Such  an  individual  might  be  regarded  as 
possessed  of  the  authoritv  of  the  demanding  government. 

2  Grin  v.  Shine,  187  U.'S.  181,  193. 

3  In  re  Kelly,  26  Fed.  852,  856;  In  re  FerreUe,  28  Fed.  878;  In  re  Herroe, 
33  Fed.  165 ;   In  re  Mineau,  45  Fed.  188. 

*  Rice  V.  .\ines,  180  U.  S.  371,  375-376;  Glucksman  i>.  Henkel,  221  U.  S. 
508;  see,  also,  Ex  parte  Dinehart,  188  Fed.  858;  Powell  v.  United  States, 
206  Fed.  400. 

5  Rice  V.  Ames,  180  U.  S.  371,  375-376. 

597 


§333]        RIGHTS  AND   DUTIES   OF  JURISDICTION 

ment,  and  that  a  requisition  for  his  surrender  accompanied  by  the 
necessary  depositions  duly  authenticated  has  been,  or  is  about 
to  be  made.^  The  absence  of  any  statement  in  the  complaint 
setting  out  the  sources  of  information  and  belief,  is  not,  however, 
regarded  as  a  fatal  defect  if  there  has  previously  been  brought  to 
the  knowledge  of  the  magistrate  as  such,  in  a  proceeding  relating 
to  the  extradition  of  the  accused,  proof  that  the  complainant  had 
in  fact  solid  grounds  for  the  allegations  which  he  made.^  The 
statement  in  the  complaint  of  sufficient  sources  of  information 
and  belief  would  seem  to  obviate  the  necessity  of  offering  simul- 
taneously proof  as  to  the  existence  or  nature  of  those  sources,  or  of 
attaching  to  the  complaint  copies  of  documents  which  were  in 
fact  the  foundation  of  the  complainant's  allegations.^ 

(c) 

§  334.   Form  of  Charge. 

The  complaint  should  set  forth  clearly  and  precisely  the  offense 
charged.  It  need  not  be  drawn  with  the  formal  precision  of  an 
indictment.  If  it  be  sufficiently  explicit  to  inform  the  accused  of 
the  precise  nature  of  the  charge  against  him,  it  is  sufficient.^  The 
complaint  should  contain  the  allegation  that  the  accused  is  a  fugi- 
tive or  that  he  is  believed  to  be  within  the  jurisdiction ;  also  the 
allegation  that  the  offense  charged  is  within  the  treaty.^ 

1  Ex  parte  Dinehart.  188  Fed.  858. 

2  Yordi  V.  Nolte,  215  U.  S.  227,  affirming  Ex  parte  Yordi,  166  Fed.  921. 

3  Notwithstanding  the  dicta  of  the  court  in  Rice  v.  Ames,  180  U.  S.  371, 
375-376,  there  is  an  absence  of  judicial  authority  to  the  effect  that  the  Act 
of  Congress  requires  the  complainant  to  offer  documentary  proof  of  the  suffi- 
ciency of  the  sources  of  his  information  and  belief.  The  test  of  the  authority 
of  the  magistrate  to  issue  a  warrant  seems  to  be  whether  he  himself  has  reason 
to  believe  that  the  complainant  has  just  ground  for  making  the  complaint. 
The  former  has  reason  for  such  belief,  when  the  complainant  asserts  under 
oath  the  existence  of  certain  facts  which  if  true  would  create  in  the 
mind  of  the  complainant  reasonable  belief  of  the  truth  of  the  allegations 
set  forth  in  the  complaint.  In  numerous  cases  complaints  have  been  upheld 
by  the  courts  where  the  complainant  has  referred  to  the  receipt  of  certain 
telegrams  as  the  sources  of  his  information  and  belief,  without  exhibiting 
to  the  magistrate  such  telegrams  or  certified  copies  thereof,  either  by  attach- 
ing them  to  the  complaint  itself  or  by  any  other  process.  See,  Castro  v.  De 
Uriarte,  12  Fed.  250;  Yordi  v.  Nolte,  215  U.  S.  227;  Powell  v.  United 
States,  206  Fed.  400. 

*  The  statement  in  the  text  is  the  language  used  by  Coxe,  J.,  in  Ex  parte 
Sternaman,  77  Fed.  595,  596,  quoted  with  approval  by  Fuller,  C.  J.,  in 
Yordi  V.  Nolte,  215  U.  S.  227,  230.  See,  also.  Grin  v.  Shine,  187  U.  S.  181, 
189;  Ex  parte  Zentner,  188  Fed.  344;  For.  Rel.  1911,  716-722,  where  a 
Consul  General  of  Spain  was  unable  to  make  a  complaint  containing  the 
allegations  commonly  declared  to  be  essential. 

*  The  language  of  the  text  is  that  of  the  captions  in  Moore,  Extradition, 
I,  §§294  and  295. 

598 


AMOUNT    OF   PROOF   REQUIRED  [§335 

(4) 
Evidence 

(a) 

§  335.   Amount  of  Proof  Required  of  Demanding  Govern- 
ment. 

According  to  Section  5270  of  the  Revised  Statutes,  if  the  com- 
mitting magistrate  deems  the  evidence  sufficient  to  sustain  the 
charge  under  the  provisions  of  the  treaty,  he  must  certify  the 
same ;  and  by  a  common  treaty  provision,  the  amount  of  evidence 
necessary  for  commitment  is  to  be  tested  by  what  the  law  of  the 
place  where  the  fugitive  was  found  would  justify  for  apprehension 
and  commitment,  if  the  crime  were  there  committed.^     Thus,  in 

1  "The  place  by  whose  law  the  question  is  to  be  tested  is,  if  the  fugitive 
is  apprehended  in  the  United  States,  the  State  in  which  he  is  found."  Moore, 
Dig.,  IV,  391,  citing  Pettit  v.  Walshe,  194  U.  S.  205.  See,  also,  Mr.  Fish, 
Secy,  of  State  to  Mr.  Westenberg,  Dutch  Minister,  Nov.  12,  1873,  For.  Rel. 
1874,  785,  Moore,  Extradition,  I,  §  337,  p.  517,  note  1. 

Authentication  of  Documentary  Evidence  of  the  Demanding  Gov- 
ernment. The  documentary  evidence  of  the  demanding  government  is  ren- 
dered admissible  if  authenticated  according  to  the  requirements  of  the  exist- 
ing law  of  the  United  States.  §  5  of  the  Act  of  August  3,  1882,  22  Stat.  216, 
U.  S.  Comp.  Stat.  1918,  §  10116,  provides:  "In  all  cases  where  any  deposi- 
tion, warrants,  or  other  papers  or  copies  thereof  shall  be  offered  in  evidence 
upon  the  hearing  of  any  extradition  case  under  Title  sixty-six  of  the  Revised 
Statutes  of  the  United  States,  such  depositions,  warrants,  and  other  papers, 
or  the  copies  thereof,  shall  be  received  and  admitted  as  evidence  on  such 
hearing  for  all  the  purposes  of  such  hearing  if  they  shall  be  properly  and  le- 
gally authenticated  so  as  to  entitle  them  to  be  received  for  similar  purposes  by 
the  tribunals  of  the  foreign  country  from  which  the  accused  party  shall  have 
escaped,  and  the  certificate  of  the  principal  diplomatic  or  consular  oflRcer 
of  the  United  States  resident  in  such  foreign  country  shall  be  proof  that  any 
deposition,  warrant  or  other  paper  or  copies  therof,  so  offered,  are  authenti- 
cated in  the  manner  required  by  this  act." 

To  understand  the  purport  of  the  foregoing  provisions  it  is  desirable  to 
examine  the  full  and  careful  discussion  contained  in  Moore,  Extradition,  I, 
chap.  XIV,  and  also  the  documents  cited  in  Moore,  Dig.,  IV,  384-388.  By 
such  process  it  becomes  possible  to  grasp  the  significance  of  the  several  Acts 
of  Congress  from  1848  until  1882  and  of  the  decisions  declaratory  of  them. 
With  respect  to  what  constitutes  compliance  with  the  Act  of  1882,  attention 
is  called  to  the  following  cases :  In  re  Behrendt,  22  Fed.  699 ;  In  re  Mc- 
Phun,  24  Blatchf.  254;  In  re  Krojanker,  44  Fed.  482;  In  re  Breen,  73  Fed. 
458;  In  re  Glaser,  176  Fed.  702;  In  re  Luis  Oteiza  y  Cortes,  136  U.  S. 
330;  Grin  v.  Shine,  187  U.  S.  181;  Elias  v.  Ramirez,  215  U.  S.  398;  In  re 
Lincoln,  228  Fed.  70. 

Respecting  the  authentication  of  extradition  papers  by  consular  officers, 
see  Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassador,  April  13,  1910, 
For.  Rel.  1910,  731,  732,  where  it  was  declared :  "This  department  is  of  the 
opinion,  however,  that  a  consular  officer  of  the  United  States,  resident  in  a 
foreign  country  in  which  the  United  States  maintains  a  diplomatic  mission, 
is  not  authorized  under  this  statute  to  authenticate  extradition  papers,  and 
that  were  the  question  raised  before  the  courts,  the  courts  would  so  interpret 
it." 

599 


§335]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

applying  local  requirements,  it  was  held  by  Judge  Morrow  in  the 
Ezeta  Case,  that  the  evidence  of  criminality 

need  not  be  such  as  would  be  required  at  the  trial  of  the 
accused,  but  must  be  such  evidence  as  ordinarily  obtains  at  a 
preliminary  examination,  and  amount  to  probable  cause  of  his 
guilt ;  probable  cause  being  such  evidence  of  guilt  as  would  fur- 
nish good  reason  to  a  cautious  man,  and  warrant  him  in  the 
belief  that  the  person  accused  is  guilty  of  the  offense  with 
which  he  is  charged.^ 

This  statement  is  believed  to  be  declaratory  of  the  principle  in- 
volved, particularly  in  view  of  the  nature  of  the  proceedings  before 
the  committing  magistrate.^ 

It  maj^  be  observed  that  the  furnishing  of  requisite  proof  that 
the  person  arrested  is  in  fact  the  fugitive  charged  with  crime  and 
whose  extradition  is  sought,  may  prove  to  be  a  difficult  task.^ 
Frequently  the  demanding  government  finds  it  impossible  to  send 
to  the  United  States  persons  capable  of  making  proof  of  identifica- 
tion ;  and  such  individuals  are  not  to  be  found  at  the  place  where 
the  hearing  is  had.  For  that  reason  it  is  believed  that  there  should 
be  embraced  within  the  depositions,  whenever  possible,  some 
means  of  establishing  the  identity  between  the  person  arrested  and 
him  whose  surrender  is  demanded.  A  photograph  of  the  latter, 
or  a  specimen  of  his  handwriting  or  of  his  finger-print,  may  suffice 
for  such  a  purpose. 

(b) 

§  336.   Defensive  Testimony. 

Pursuant  to  the  provision  of  Section  Three  of  the  Act  of  Con- 
gress of  August  3,  1882,^  a  fugitive  is  regarded  as  entitled  to  call 
witnesses  in  his  own  behalf,  and  to  testify  himself,  if  he  so  desires.^ 

1  In  re  Ezeta,  62  Fed.  972,  9S2,  citing  Aaron  Burr's  Case,  1  Burr's  Trial, 
11 ;  Munns  v.  Dupont,  3  Wash.  C.  C.  31 ;  In  re  Farez,  7  Blatchf.  345 ;  In  re 
Wadge,  15  Fed.  864;  16  Fed.  332;  In  re  Macdonnell,  11  Blatchf.  170;  In 
re  Behrendt,  22  Fed.  699;  Benson  v.  McMahon,  127  U.  S.  457,  462.  See, 
also,  opinion  of  Mr.  Nelson,  Atty.-Gen.,  4  Ops.  Attvs.-Gen.,  201,  Moore,  Dig., 
IV,  388;  Moore,  Extradition,  I,  §§  337-340;  Mr.  Olney,  Secy,  of  State,  to  Mr. 
Townsend,  Nov.  13,  1896,  213  MS.  Dom.  Let.  680,  Moore,  Dig.,  IV,  390; 
In  re  Piaza,  133  Fed.  998 ;  In  re  Glaser,  176  Fed.  702,  704. 

2  Benson  v.  McMahon,  127  U.  S.  457,  462-463. 

3  See.  for  example.  Ex  parte  La  Mantia,  206  Fed.  330,  332-333. 
<22  Stat.  215,  U.  S.  Comp.  Stat.  1918,  §  10114. 

5  In  re  Farez,  7  Blatchf.  345;  In  re  Kelley,  25  Fed.  268.  "The  magis- 
trate is  not  bound  to  adjourn  proceedings  to  enable  the  accused  to  obtain 
evidence  of  an  alibi."  Moore,  Dig.,  IV,  391,  citijig  In  re  Wadge,  15  Fed. 
864. 

600 


HABEAS    CORPUS   PROCEEDINGS  [§  337 

On  the  other  hand,  the  Supreme  Court  of  the  United  States  has 
held  that  Section  Five  of  the  same  Act  of  Congress  respecting 
the  admissibihty  of  depositions  when  certified  in  the  manner 
prescribed,  is  not  applicable  to  depositions  offered  on  the  part  of 
the  accused,  and  that  such  documents  when  so  authenticated  are 
not  admissible.^ 

In  view  of  the  nature  and  purpose  of  the  inquiry  before  the  com- 
mitting magistrate,  the  evidence  on  the  part  of  the  accused  should 
be  directed  to  show  that  he  did  not  in  fact  commit  the  acts  charged 
against  him,  or  that  the  acts  so  charged  did  not  constitute  any 
extraditable  offense.  Thus,  for  example,  he  might  be  able  to 
offer  convincing  testimony  that  an  act  of  robbery  laid  at  his  door 
was,  by  reason  of  the  attending  circumstances,  of  a  political 
character,  thus  rendering  the  actor  outside  of  the  scope  of  the 
treaty.^  On  the  other  hand,  evidence  to  show  justification  or 
excuse  for  an  act  committed  by  the  accused,  being  a  matter  of 
defense,  should  be  reserved  until  the  trial  before  the  court  of  the 
demanding  government,  and  hence  excluded  from  the  considera- 
tion of  the  committing  magistrate.^ 

(c) 

§  337.    Scope  of  Inquiry  in  Habeas  Corpus  Proceedings. 

None  doubt  that  a  writ  of  habeas  corp^is  cannot  perform  the 
function  of  the  office  of  a  writ  of  error.^  The  precise  scope  of 
the  inquiry  to  be  made  by  the  court  issuing  the  writ  in  extradi- 
tion cases  was  well  stated  by  Mr.  Justice  Blatchford,  when,  as  a 
District  Judge  in  1875,  he  announced  the  decision  of  the  court 
in  the  case  of  In  re  Stupp.     He  declared  : 

In  full  conformity  with  these  views,  the  great  purposes  of 
the  writ  of  habeas  corpus  can  be  maintained,  as  they  must  be. 
The  Court  issuing  the  writ  must  inquire  and  adjudge  whether 
the  Commissioner  acquired  jurisdiction  of  the  matter,  by  con- 
forming to  the  requirements  of  the  treaty  and  the  statute ; 

1  In  re  Luis  Oteiza  y  Cortes,  136  U.  S.  330,  336-337. 

2  This  was  successfully  shown,  for  example,  in  the  Rudovitz  Case. 

3  In  re  Cienfuegos,  62  Fed.  972,  976.  In  Ex  parte  Charlton,  185  Fed. 
880,  883-884,  it  was  held  that  the  question  of  the  sanity  of  the  accused 
at  the  time  of  the  commission  of  the  crime  charged  was  a  matter  of  defense 
and  could  only  be  interposed  when  he  was  put  on  trial;  also  that  inquiry 
as  to  the  question  of  his  sanity  subsequent  to  the  commission  of  the  offense 
could  only  be  raised  immediately  before  the  trial,  and  then  in  the  forum 
where  the  trial  might  be  pending. 

^In  re  Luis  Oteiza  v  Cortes,  136  U.  S.  330;  Ornelas  v.  Ruiz,  161  U.  S. 
502,  508. 

601 


§337]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

whether  he  exceeded  his  jurisdiction ;  and  whether  he  had  any 
legal  or  competent  evidence  of  facts  before  him,  on  which  to 
exercise  a  judgment  as  to  the  criminahty  of  the  accused.  But, 
such  Court  is  not  to  inquire  whether  the  legal  evidence  of  facts 
before  the  Commissioner  was  sufficient  or  insufficient  to  warrant 
his  conclusion.  Nor,  if  there  was  legal  and  competent  evidence 
of  facts  before  the  Commissioner,  for  him  to  consider  in  making 
up  his  decision  as  to  the  criminality  of  the  accused,  is  the  Court, 
on  habeas  corpus,  to  hold  the  proceedings  illegal  and  to  discharge 
the  prisoner  because  some  other  evidence  was  introduced  which 
was  not  legal  or  competent,  but  was  held  to  be  so  by  the  Com- 
missioner and  was  considered  by  him  on  the  question  of  fact, 
or  because  the  Court,  on  a  consideration  of  all  the  evidence 
which  the  Commissioner  considered,  would  have  come  to  a 
different  conclusion,  or  because  the  Court,  on  an  exclusion  of 
such  of  the  evidence  as  it  may  think  was  not  legal  or  competent, 
would  come,  on  the  rest  of  the  evidence,  to  a  different  conclu- 
sion of  fact  from  that  at  which  the  Commissioner  arrived.  In 
other  words,  the  proper  inquiry  is  to  be  limited  to  ascertaining 
whether  the  Commissioner  had  jurisdiction,  and  did  not  exceed 
his  jurisdiction,  and  had  before  him  legal  and  competent  evi- 
dence of  facts  whereon  to  pass  judgment  as  to  the  fact  of  crimi- 
nality, and  did  not  arbitrarily  commit  the  accused  for  surrender, 
without  any  legal  evidence.^ 

As  the  documentary  evidence  of  the  demanding  government 
when  authenticated  according  to  the  requirement  of  the  Act  of 
Congress  is  thereby  made  admissible,  no  question  can  be  raised 
as  to  its  competence.^  Thus  the  objection  that  certain  testi- 
mony contained  in  the  depositions  is  not  under  oath  and  hence  not 
admissible  would  be  without  force.^  As  to  the  oral  testimony 
of  the  demanding  government,  the  question  respecting  com- 
petence cannot  easily  arise  for  the  reason  that  the  rules  w^hich 
have  been  developed  for  the  purpose  of  preventing  certain  classes 
of  testimony  from  being  presented  to  a  jury,  have  no  application 
to  a  situation  where  there  is  no  jury,  and  the  judicial  proceedings 
are  in  the  nature  of  a  preliminary  examination  rather  than  a  trial. 

The  committing  magistrate  must  have  before  him  some  legal 
as  well  as  competent  evidence  on  which  to  pass  judgment  —  evi- 

1  12  Blatchf.  501,  519. 

*  "WTiere  the  certificate  is  suflBcient  it  is  conclusive  as  to  the  admissibility 
of  the  evidence."  Moore,  Extradition,  I,  §  330.  See,  also,  Elias  v.  Ramirez, 
215  U.  S.  398,  409 ;  Bingham  v.  Bradley,  241  U.  S.  511,  517 ;  Ex  parte  Schorer, 
197  Fed.  67,  72;  earlier  cases  cited  in  Moore,  Extradition,  I,  501,  note  3; 
In  re  Lincoln,  228  Fed.  70. 

3  Elias  V.  Ramirez,  215  U.  S.  398,  409. 

602 


HABEAS    CORPUS   PROCEEDINGS  [§338 

dence  both  of  the  "  criminahty "  of  the  accused,  and  of  the  fact 
that  the  offense  charged  against  him  is  rendered  extraditable  by 
the  treaty  invoked.  It  thus  becomes  important  in  habeas  corpus 
proceedings  to  observe  whether  the  objection  to  the  decision  of 
the  committing  magistrate  in  holding  the  accused  to  await  extra- 
dition, rests  upon  the  contention  that  there  was  an  entire  absence 
of  legal  evidence,  or  upon  the  contention  that  the  legal  evidence 
received  was  in  fact  insufficient. 

Every  treaty  of  extradition  establishes  certain  tests  of  the 
legality  of  the  evidence  to  be  furnished  by  the  demanding  govern- 
ment. These  refer  to  the  nature  of  the  offense  charged,  and  to  the 
sujfficiency  of  evidence  to  be  submitted.  For  example,  a  treaty 
rendering  extraditable  the  embezzlement  of  "public  monies"  by 
"public  officers",  would  appear  to  assert,  as  one  test  of  the  legality 
of  evidence  essential  to  commitment  and  surrender,  evidence 
of  the  fact  that  the  funds  embezzled  were  "public"  and  that  the 
accused  was  a  "public"  official.  In  the  absence  of  proof  of  those 
facts  the  magistrate  would  have  before  him  no  legal  evidence  on 
which  to  act.^ 

§  338.   The  Same. 

It  has  been  seen  that  the  treaties  almost  always  make  the  duty 
to  surrender  the  accused  dependent  upon  the  production  of  evi- 
dence of  criminality  sufficient  to  justify  his  commitment  for 
trial  according  to  the  law  of  the  place  where  he  is  found.  If,  there- 
fore, the  testimony  of  the  demanding  government  should  be  ex- 
clusively of  a  kind  which,  according  to  the  law  of  the  place  where 
accused  was  found,  was  rendered  insufficient  to  commit  a  person 
for  trial,  there  would  be  no  legal  evidence  before  the  magistrate. 
If  he  should  commit  the  accused  on  such  testimony,  the  objection 
on  habeas  corpus  proceedings  would  not  be  directed  primarily 
against  the  sufficiency  of  evidence  but  rather  against  the  nature 
of  what  was  rendered  illegal  by  the  treaty.^ 

1  Art.  II  of  convention  with  Italy  of  March  23,  1868,  Malloy's  Treaties, 
I,  967 ;  also  Ex  parte  Ronchi,  164  Fed.  288.  See,  also,  in  this  connection, 
Ex  parte  La  Page,  216  Fed.  256. 

2  An  exact  application  of  this  principle  is  found  in  Ex  parte  Fudera,  162 
Fed.  591,  where  the  only  testimony  of  the  demanding  government  relative 
to  a  murder  charged  against  the  accused  was  certain  hearsay  testimony  con- 
tained in  the  depositions.  The  court  issuing  the  writ  of  habeas  corpus  held 
that  by  the  law  of  the  place  where  the  accused  was  found,  such  testimony 
would  not  suffice  to  commit  a  person  to  await  trial,  that  the  treaty  require- 
ment was,  therefore,  not  complied  with,  and  that  hence  the  accused  was  en- 
titled to  be  discharged.  It  is  believed,  however,  that  while  the  learned  judge 
may  have  correctly  stated  the  law  of  the  place  where  the  accused  was  found 

603 


§338]        RIGHTS  AND   DUTIES  OF  JURISDICTION 

Not  until  there  is  legal  evidence  before  the  committing  magis- 
trate can  a  question  as  to  its  sufficiency  arise.  If  the  order  of 
commitment  should  be  based  upon  an  amount  of  legal  evidence 
so  slight  that  the  decision  would  appear  incomprehensible  in  the 
matter  of  reasoning,  or  necessarily  attributable  to  passion  or 
partiality,  it  is  believed  that  the  court  issuing  the  writ  of  habeas 
corpus  would  be  justified  in  discharging  the  prisoner.  In  such  case 
the  committing  magistrate  would  not  have  had  before  him  suffi- 
cient evidence  on  which  he  could  justify  any  judgment  other  than 
one  favorable  to  the  accused.  Hence,  the  case  would  resemble  one 
where  no  legal  evidence  whatever  was  offered.  Thus  the  principle 
frequently  announced  by  the  Supreme  Court  of  the  United  States 
that  the  sufficiency  of  the  legal  and  competent  evidence  before 
the  committing  magistrate  cannot  be  reviewed  on  habeas  corpus 
proceedings  is  believed  to  signify  that  the  impropriety  of  review 
depends  upon  the  existence  of  any  evidence  such  as  would  warrant 
the  commitment  of  the  prisoner  without  subjecting  the  magis- 
trate to  the  charge  of  partiality  or  mental  weakness.^ 

in  the  case  before  him,  such  is  not  universally  the  law  in  the  United  States. 
Sometimes  the  local  law  does  permit  the  commitment  of  a  person  for  trial 
on  hearsay  testimony.  See,  for  example,  the  case  of  McKinney  v.  United 
States,  199  Fed.  25,  where  there  was  nothing  but  hearsay  testimony  be- 
fore the  grand  jury  to  support  the  charge  of  the  indictment,  and  where  a 
motion  to  quash  the  indictment  was  overruled,  and  the  judgment  of  con- 
viction affirmed  by  the  United  States  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit.  Where  such  is  the  law,  hearsay  testimony  in  the  depositions  be- 
comes legal  testimony  so  far  as  the  treaty  is  concerned.  Compare  In  re  Ezeta, 
62  Fed.  972,  988,  respecting  the  case  against  General  Bolanos. 

1  It  is  not  believed  that  the  Supreme  Court  of  the  United  States  has  an- 
nounced a  different  rule.  In  the  case  of  Benson  i'.  McMahon,  127  U.  S. 
457,  463,  the  Court  declared  that  the  inquiry  was  whether  there  was  legal 
evidence  before  the  commissioner  "to  justify  him  in  exercising  his  power  to 
commit  the  person  accused  to  custody."  After  reviewing  the  testimony 
the  court  expres.sed  the  opinion  that  the  commissioner  "was  justified."  The 
decision  was  quoted  with  approval  by  Mr.  Justice  Blatchford  in  the  case  of  In 
re  Luis  Oteiza  y  Cortes,  136  U.  S.  330.  In  announcing  the  opinion  of  a  unani- 
mous court  he  stated  that  the  decision  of  the  commissioner  could  not  be  re- 
viewed when  he  had  before  him  "competent  legal  evidence  on  which  to  exer- 
cise his  judgment."  Id.,  334.  The  same  language  was  employed  by  Chief 
Justice  Fuller  in  the  opinion  of  the  Court  in  Ornelas  v.  Ruiz,  161  U.  S.  502, 
508,  and  the  foregoing  decisions  were  cited  as  authority.  In  Bryant  i'.  United 
States,  167  U.  S.  104,  the  opinion  was  delivered  by  Mr.  Justice  Brown,  who 
declared  that  "the  question  before  us  is  .  .  .  whether  there  was  any 
legal  evidence  at  all  upon  which  the  commissioner  could  decide  that  there  was 
evidence  sufficient  to  justify  his  commitment  for  extradition."  To  explain 
his  meaning  the  learned  Justice  quoted  the  language  of  Chief  Justice  Fuller 
in  Ornelas  v.  Ruiz.  In  the  ca«e  of  Terlinden  v.  Ames,  184  U.  S.  270,  278. 
Chief  Justice  Fuller  cited  Ornelas  i>.  Ruiz,  and  Bryant  v.  United  States,  and 
quoted  as  declaratory  of  the  principle  involved,  the  statement  of  the  court 
in  the  case  of  In  re  Stupp,  12  Blatchf.  501,  519,  which  is  quoted  in  the  text 
above.  In  Elias  v.  Ramirez,  215  U.  S.  398,  409,  the  Court  was  of  opinion 
that  the  evidence  was  such  as  to  "justify"  the  order  of  the  commissioner,  and 
for  that  reason  reversed  the  decision  of  the  Supreme  Court  of  Arizona  which 

604 


AN    EXECUTIVE    FUNCTION  [§  339 

(5) 
Surrender 

(a) 

§  339.   An  Executive  Function. 

According  to  Section  5272  of  the  Revised  Statutes,  the  Secre- 
tary of  State  is  empowered  to  order,  under  his  hand  and  seal  of 
office,  the  person  committed  to  be  dehvered  to  the  duly  authorized 
agent  of  the  demanding  government ;  and  such  agent  is  authorized 
to  hold  the  prisoner  in  custody  and  to  take  him  to  the  territory 
of  the  demanding  government  pursuant  to  the  treaty.^ 

An  Act  of  Congress  of  February  6,  1905,  extending  Sections 
5270-5278  of  the  Revised  Statutes  so  far  as  applicable,  to  the 
Philippine  Islands,  provided  that  when  a  person  is  committed 
therein  for  extradition,  the  order  for  delivery  "shall  be  issued 
by  the  Governor  of  the  Philippine  Islands  under  his  hand  and 
seal  of  office  and  not  by  the  Secretary  of  State."  ^ 

had  declared  that  there  was  no  competent  legal  evidence  of  the  crime  charged 
upon  which  the  commissioner  might  have  exercised  his  judgment.  Like- 
wise in  McNamara  v.  Henkel,  226  TJ.  S.  520,  524,  the  Supreme  Court  expressed 
the  opinion  that  there  was  evidence  before  the  Commissioner  upon  which 
he  "was  entitled  to  exercise  his  judgment."  In  Bingham  v.  Bradley,  241 
U.  S.  511,  516-517,  Mr.  Justice  Pitney  declared  in  the  opinion  of  the  Court, 
that  the  decision  of  the  Commissioner,  deeming  the  evidence  sufficient  to 
sustain  the  charge  against  the  accused,  could  not  be  reversed  on  habeas  corpus 
"if  he  acted  on  competent  and  legal  evidence."  McNamara  v.  Henkel,  226 
U.  S.  520,  was  cited.  He  added  that  the  evidence  was  "abundantly  suffi- 
cient" to  furnish  reasonable  ground  for  belief  that  the  accused  had  com- 
mitted an  extraditable  offense  within  the  terms  of  the  treaty. 

1  See,  also,  statement  in  Moore,  Extradition,  I,  §  359 ;  Moore,  Dig.,  IV, 
397.  Concerning  the  nature  of  the  power  to  surrender,  see  Terlinden  v.  Ames, 
184  U.  S.  270,  289,  where  it  was  declared  by  Chief  Justice  Fuller :  "The  war- 
rant of  surrender  is  issued  by  the  Secretary  of  State  as  the  representative  of 
the  President  in  Foreign  Affairs." 

§  5272  R.  S.  makes  provision  also  for  the  recapture  of  the  accused  in  case 
of  his  escape.  See  case  of  G.  D.  Reed  where,  following  an  exceptional  pro- 
cedure, the  accused  was,  at  the  request  of  the  Mexican  Government,  delivered 
to  its  agents,  not  at  the  place  of  detention  in  New  Jersey,  but  in  Texas,  to 
which  State  he  was  transferred  by  American  authorities.  For.  Rel.  1908, 
597-601. 

2  33  Stat.  698,  U.  S.  Comp.  Stat.  1918,  §  10124. 

According  to  the  terms  of  a  convention  between  the  United  States  and  the 
Netherlands  of  January  18,  1904,  the  provisions  of  the  existing  extradition 
treaty  of  June  2,  1887,  were  made  applicable  to  the  island  possessions  of  the 
United  States  and  to  the  colonies  of  the  Netherlands.  Art.  Ill  declared  that : 
"Application  for  the  surrender  of  a  criminal  may  be  made  directly  to  the 
governor  or  chief  magistrate  of  the  island  possession  or  colony  in  which  the 
criminal  has  sought  refuge,  by  the  governor  or  chief  magistrate  of  an  island 
possession  or  colony  of  the  other  contracting  party,  Provided,  That  both 
island  possessions  or  colonies  are  situated  in  Asia  or  both  in  America  (includ- 
ing the  West  India  Islands) ;  in  making  such  application,  the  intervention  of 
a  consxilar  officer  in  such  a  possession  or  colony  may  be  used,  although  no 

605 


§339]        RIGHTS   AND   DUTIES   OF   JURISDICTION 

A  naval  commander  cannot  execute  an  extradition  treaty 
under  the  laws  of  the  United  States  or  in  conformity  with  its 
express  stipulations.^ 

(b) 

§  340.   Executive  Discretion.     Obstacles  to  Surrender. 

The  Secretary  of  State  exercises  a  revisory  power  in  cases  where 
accused  has  been  duly  committed  by  a  magistrate,  and  even 
where  an  order  of  commitment  has  been  sustained  on  habeas  corpus."^ 
The  sufficiency  of  the  evidence  is  a  question  for  the  courts,  with- 
out whose  certificate  of  criminality  the  President  cannot  order 
the  extradition  of  the  accused.^  It  is  believed,  therefore,  that  the 
Executive  has  no  power  to  surrender  a  fugitive  upon  any  charge 
other  than  one  which  has  been  heard  before  a  magistrate  and 
certified  by  him  to  be  sustained  by  the  evidence  offered.^  On 
the  other  hand,  the  Secretary  of  State  is  unwilling  to  consider 
evidence  which  was  not  produced  before  the  committing  magis- 
trate, in  behalf  either  of  the  accused  or  of  the  demanding  govern- 
ment.^ 

modification  shall  thereby  be  made  in  his  capacity  as  a  commercial  agent. 
The  aforesaid  governors  or  chief  magistrates  shall  have  authority  either  to 
grant  the  extradition  or  to  refer  the  matter  for  decision  to  the  mother  country. 
In  all  other  cases,  application  for  extradition  shall  be  made  through  the  diplo- 
matic channel."     Malloy's  Treaties,  II,  1272. 

Attention  is  called  to  Art.  IX  of  the  extradition  treaty  with  Mexico  of 
February  22,  1899,  which  permits,  under  certain  circumstances,  requisitions 
to  be  made  by  specified  authorities  of  "frontier  States  or  Territories."  This 
Article  is  believed  to  contemplate  the  surrender  also  by  such  authorities. 
Malloy's  Treaties,  I,  1188.  Respecting  the  operation  of  the  treaty,  see  Mr. 
Adee,  Acting  Secv.  of  State  to  Mr.  Foster,  October  24,  1900,  248  MS.  Dom. 
Let.  453,  Moore, "Dig.,  IV,  244.  Also  Art.  XIII  treaty  with  France,  Jan.  6, 
1909,  Charles'  Treaties,  37. 

1  Such  was  the  language  of  Mr.  Blaine,  Secy,  of  State,  in  a  communication 
to  Mr.  Denby,  Minister  to  China,  No.  680,  Dec.  7,  1891,  For.  Rel.  1892,  74 
75,  Moore,  Dig.,  IV,  283,  where  it  was  also  said:  "No  order  of  his,  for  in- 
stance, would  legally  take  the  place  of  the  warrant  of  surrender,  which  can 
only  be  issued  by  the  Secretary  of  State  after  due  fulfilment  of  the  precedent 
judicial  requirernents.  The  same  course  of  reasoning  applies  to  the  powers 
of  the  United  States  minister  to  grant  extradition  in  such  a  case.  He  has  no 
such  power,  bv  statute  or  treatv.     Neither  has  a  consul." 

2  Statement  in  Moore.  Dig.,  IV,  399,  citing  Moore,  Extradition,  I  551-556, 
In  re  Stupo,  11  Blatchf.  124;  14  Op.  281,  In  re  Stupp,  12  Blatchf.  501.  See, 
also,  Mr.  Bayard.  Secv.  of  State,  to  Mr.  West,  April  15,  1886,  MS.  Notes  to 
Great  Britain,  XX,  233,  Moore,  Dig.,  IV,  403. 

*  Mr.  Cu'^hing,  Atty.-Gen.,  6  Ops.  Attys.-Gen.,  217,  cited  in  Moore,  Dig., 
IV,  400.     The  language  of  Mr.  Moore  is  employed  in  the  text. 

*  The  language  in  the  text  is  taken  from  a  statement  in  Moore,  Dig.,  IV, 
400,  based  upon  a  communication  of  Mr.  Blaine,  Secy,  of  State,  to  Sir  J. 
Pauncefote,  British  Minister,  May  17,  1892,  MS.  Notes  to  Great  Britain, 
XXI,  664. 

6  Mr.  Hay,  Secy,  of  State,  to  Messrs.  Kingsford  and  Son,  Feb.  25,  1899, 
235  MS.  Dom.  Let.  152,  Moore,  Dig.,  IV.  400;  J.  R.  Clark,  Jr.,  in  Pro-eedings 

606 


EXECUTIVE    DISCRETION  [§  340 

In  view  of  the  provision  of  the  Act  of  Congress  permitting  the 
accused  to  secure  his  release  under  specified  circumstances,  if 
within  two  calendar  months  after  the  order  of  commitment,  he 
shall  not  have  been  conveyed  out  of  the  United  States,  any  re- 
visory action  on  the  part  of  the  Secretary  of  State  must  neces- 
sarily be  taken  without  delay .^  Hence,  an  appeal  in  behalf  of 
the  accused  from  the  order  of  commitment  should  be  made  imme- 

of  Am.  Soc,  III.  95,  114,  citing  Moore,  Extradition,  I,  §§  374-376;  and  the 
Pouren  Case. 

Mr.  Root,  Secy,  of  State,  in  a  communication  to  Mr.  Shield.s,  United  States 
Commissioner,  Oct.  13,  1908,  declared:  "Counsel  for  Jan  Janoff  Pouren, 
whom,  pursuant  to  the  provisions  of  our  treaty  of  extradition  with  Russia, 
you  recently  committed,  upon  various  charges,  for  surrender  to  that  Govern- 
ment, have  submitted  to  the  Secretary  of  State  certain  affidavits  not  offered 
before  the  Commissioner,  which  are  intended  to  show  that  the  offences  with 
which  Pouren  is  charged  and  for  which  he  was  committed  for  surrender  are  of  a 
political  character. 

"It  would  appear  that  in  submitting  these  affidavits  to  the  Secretary  of 
State,  counsel  for  the  accused  acted  under  the  mistaken  belief  that  matters 
of  this  sort  might  be  brought  directly  before  the  Executive  even  though  form- 
ing no  part  of  the  record  of  the  case.  Such,  however,  is  not  the  practice  of 
this  Department  which  has,  in  the  past,  repeatedly  refused  to  consider  evi- 
dence which  did  not  form  a  part  of  the  record  submitted  by  the  committing 
magistrate. 

"The  eviderrce  which  counsel  now  offer  is  clearly  of  a  kind  that  should  have 
been  submitted  to  the  committing  magistrate  at  the  hearing  when  full  oppor- 
tunity was  afforded,  in  order  that  such  portions  of  it  as  might  be  found  proper 
should  become  a  part  of  the  record  and  so  be  considered  by  the  Commissioner 
in  reaching  his  determination  to  release  or  hold  the  fugitive.  Since  as  to 
the  merits  the  only  defence  offered  by  the  accused  in  this  case  appears  to  be 
that  the  offences  with  which  he  is  charged  are  political  in  their  character,  and 
since  the  mistaken  action  of  his  counsel  practically  deprived  him  of  this  defence 
at  the  hearing,  and  since,  further,  if  the  offences  are  in  reality  political,  extra- 
dition for  their  commission  is  expressly  prohibited  by  the  treaty,  it  would  seem 
that  the  plain  intent  of  the  treaty  would  fad  if  this  evidence  were  now  alto- 
gether excluded  from  consideration. 

"The  courts  have  in  the  past  repeatedly  held  fugitives,  against  whom  a 
demanding  government  failed  in  the  first  instance  to  establish  an  extraditable 
offence,  to  await  the  production  of  further  evidence  by  the  demanding  govern- 
ment, and  fugitives  have  afterwards  been  surrendered  upon  such  evidence  so 
produced.  Fair  play  and  justice  would  appear  to  require  that  the  fugitive 
in  a  proper  case  should  be  given  similar  reasonable  opportunities. 

"It  would  seem,  therefore,  that  the  fugitive  should  not  under  these  circum- 
stances be  punished  for  his  counsel's  mistake,  but  should  be  given  a  reasonable 
opportunity  to  present  such  further  evidence  as  he  may  have  bearing  upon 
this  question  of  political  offence. 

"The  record  is  therefore  returned  to  you  to  the  end  that  you  may  reopen 
the  case  and  permit  the  counsel  for  both  parties  to  offer  such  further  evi- 
dence as  they  may  see  fit  relating  to  the  question  of  political  offences.  Upon 
the  receipt  of  the  amended  certified  record  and  your  decision  thereon,  the 
Secretary  of  State  can  determine  whether  the  warrant  of  surrender  should 
issue."  ("The  author  is  indebted  to  the  courtesy  of  Mr.  Knox,  Secy,  of  State, 
Jan.  17,  1913,  for  a  cony  of  the  foregoing  communication.) 

1  Rev.  Stat.  §5273."  Concerning  it  see  In  re  Dawson.  101  Fed.  253; 
also,  Mr.  Olnev,  Secv.  of  State,  to  Messrs.  Ingram  &  Hewitt.  Mav  11,  1896, 
210  MS.  Dom.  Let.  94,  Moore,  Dig.,  IV,  404;  Mr.  Adee,  for  Mr.  Knox,  Secy. 
of  State,  to  the  Ambassador  of  Austria-Hungary,  Oct.  26,  1910,  For.  Rel. 
1910,  78. 

607 


§340]        RIGHTS   AND   DUTIES   OF  JURISDICTION 

diately  upon  the  entering  thereof.  Such  proceedings,  however 
important,  are  of  an  informal  character.  The  filing  of  briefs  by 
counsel  is  permitted.  Should  the  Department  of  State  deem  it  use- 
ful, opportunity  for  informal  conference  with  the  law  officer  of 
the  Department  may  also  be  given.  "It  is  not  the  practice  of 
the  Department  to  have  formal  hearings  in  extradition  cases."  ^ 
Several  of  the  more  recent  treaties  of  the  United  States  make 
provision  that  extradition  shall  be  deferred  where  the  accused  is 
being  prosecuted  in  the  State  upon  which  requisition  is  made, 
for  an  offense  there  committed,  until  at  least  he  is  entitled  to 
liberation.^  It  is  said  that  the  "warrant  of  the  Secretary  of  State 
for  the  surrender  of  a  fugitive  from  justice  is  subject  to  the  author- 
ity of  the  courts  of  the  United  States  to  hold  the  fugitive  for  trial 
on  any  charge  which  may  be  pending  therein  against  him."  ^ 

(c) 
§  341.   Transit. 

No  foreign  State  having  custody  of  a  person  surrendered  to  it 
by  any  other,  pursuant  to  extradition  proceedings,  may  lawfully 
convey  him  through  the  territory  of  a  third  State  or  into  a  place 
subject  to  its  exclusive  control  without  its  consent.^  Hence,  special 

1  Mr.  Root,  Secy,  of  State,  to  Mr.  Hyde,  of  counsel  for  Christian  Rudovitz, 
Dec.  15,  1908,  file  No.  16649/11;   also  Moore,  Extradition,  I,  §  376. 

2  See,  for  example,  Art.  VI  of  treatv  with  Guatemala,  Feb.  27,  1903,  Mal- 
loy's  Treaties,  I,  881.  Also  Mr.  Hay,  Secy,  of  State,  to  Mr.  Aspiroz,  No.  158, 
March  14,  1901,  MS.  Notes  to  Mexican  Legation,  X,  573,  Moore,  Dig.,  IV, 
402 ;  correspondence  between  the  United  States  and  Mexico  in  1895,  respect- 
ing the  Case  of  Chester  W.  Rowe,  For.  Rel.  1895,  part  II,  997-1011,  Moore, 
Dig.,  IV,  302-303,  401-402. 

3  xhe  language  in  the  text  is  quoted  from  that  in  Moore,  Dig.,  IV,  401, 
which  is  based  upon  the  following  authorities :  Mr.  Gresham,  Secy,  of  State, 
to  Mr.  Romero,  Mexican  Minister,  Mav  15,  1893,  MS.  Notes  to  Mexico,  IX, 
666;  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Romero,  July  3,  1893,  id.,  676; 
Mr.  Gresham  to  Mr.  Romero,  July  12,  1893,  id.,  679;  Mr.  Rockhill,  Acting 
Secy,  of  State,  to  Atty.-Gen.,  July  21,  1896,  211  MS.  Dom.  Let.  440. 

^  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Brewster,  Atty.-Gen.,  Jan.  2, 
1885,  153  MS.  Dom.  Let.  549,  Moore,  Dig.,  IV,  406.  "In  consequence  of  the 
theory  of  EngUsh  and  American  jurisprudence,  regarding  the  territoriality 
of  crime,  no  person  can  lawfully  be  arrested  or  held  in  custody  in  this  country 
for  a  crime  committed  outside  of  its  jurisdiction,  except  as  provided  by  statute 
or  by  treaty."  Memorandum  to  the  Japanese  Embassy,  March  2,  1907,  For. 
Rel.  1907,  il,  759. 

In  1908  the  German  Embassy  objected  to  the  action  of  the  American  Consul- 
General  at  Tangier  in  having  put  on  board  a  German  merchant  vessel  in 
1906,  for  transportation  to  New  York,  without  application  for  the  assent  of  the 
German  government,  one  Paul  O.  Stensland  in  the  custody  of  two  authorized 
agents  of  the  United  States,  through  whose  efforts  he  had  been  arrested.  For. 
Rel.  1908,  353-355. 

See  difficulties  connected  with  the  transit  of  a  fugitive  from  justice  in  the 
course  of  extradition  proceedings  between  Luxemburg  and  the  United  States, 
contained  in  For.  Rel.  1910,  81-104. 

608 


TRANSIT  [§  341 

arrangements  have  been  made  necessary  for  the  return  of  a  fugitive 
to  the  United  States  where  a  vessel  conveying  him  thereto  was 
obhged  to  stop  at  an  intermediate  foreign  port.^  In  the  absence 
of  an  appropriate  Act  of  Congress,  or  of  a  treaty,  the  executive 
authority  of  the  United  States  is  believed  to  lack  the  right  to  con- 
sent to  transit  through  its  territory,  at  least  to  the  extent  of  pre- 
venting the  courts  from  releasing  the  prisoner  by  a  writ  of  habeas 
corpus.^  While  the  United  States  may  at  any  time  object  to  the 
transit  through  its  domain  of  fugitives  in  the  course  of  transporta- 
tion between  third  States,  the  Department  of  State  has  declared 
that  "  this  is  a  right  which  in  practice  is  left  to  be  invoked  by  the 
party  in  appropriate  judicial  proceedings  and  not  by  this  govern- 
ment in  the  first  instance."  ^ 

1  Memorandum  to  the  Japanese  Embassy,  For.  Rel.  1907,  I,  759,  760,  re- 
ferring also  to  the  case  in  For.  Rel.  1878,  151,  where,  in  transit  across  the 
Isthmus  of  Panama,  the  fugitive  was  permitted  to  escape. 

2  Mr.  Strobel,  Third  Assist.  Secy,  of  State,  to  Mr.  Coppinger,  Consul  at 
Toronto,  No.  9,  Feb.  20,  1894,  144  MS.  Inst.  Consuls,  411,  Moore,  Dig.,  IV, 
406. 

It  may  be  observed  that  Art.  XVI  of  the  treaty  with  Mexico  of  Feb.  22, 
1899,  which  makes  provision  for  the  transit  of  fugitives  through  the  terri- 
tories of  the  contracting  parties,  declares  that  the  Article  shall  not  take  effect 
"until  the  Congress  of  the  respective  countries  shall  by  law  authorize  such 
transit,  and  the  issue  of  a  warrant  therefor."     Malloy's  Treaties,  I,  1189. 

See,  also,  treaty  with  Great  Britain  of  May  18,  1908,  in  reference  to  recip- 
rocal rights  for  the  United  States  and  Canada  in  the  matters  of  conveyance 
of  prisoners  and  wrecking  and  salvage.     Malloy's  Treaties,  I,  830. 

Art.  XIV  of  the  treaty  with  Salvador  of  April  18,  1911,  makes  provision 
for  transit,  where  the  fugitive  is  not  a  citizen  of  the  country  to  be  passed 
through,  if  the  permission  of  the  Secretary  of  State  of  the  United  States,  or 
of  the  Minister  for  Foreign  Relations  of  Salvador,  as  the  case  may  be,  is  first 
obtained.     U.  S.  Treaty  Series,  No.  560,  Charles'  Treaties,  111. 

^  Memorandum  to  the  Japanese  Embassy,  March  2,  1907,  For.  Rel.  1907, 
759,  761. 


609 


TITLE  D 
NATIONALITY 

1 
§  342.   In  GeneraL 

Nationality  refers  to  the  relationship  between  a  State  and  an 
individual  which  is  such  that  the  former  may  with  reason  regard 
the  latter  as  owing  allegiance  to  itself.^  The  State  may  describe 
such  a  person  as  its  national.  It  will  be  seen  that  in  the  case  of  a 
minor  child,  the  right  to  claim  allegiance  is  oftentimes  challenged 
or  regarded  as  held  in  abeyance,  when  the  sovereign  does  not 
also  possess  the  power  to  exact  allegiance.     Hence  the  State  may 

1  See.  generally,  documents  in  Moore,  Dig.,  Ill,  273-810;  cases  in  Moore, 
Arbitrations,  III,  2449-2655 ;  papers  relating  to  Expatriation,  Naturalization 
and  Change  of  Allegiance,  For.  Rel.  1873,  II,  1185-1438;  Report  on  Citizen- 
ship of  the  United  States,  Expatriation  and  Protection  Abroad,  bv  J.  B.  Scott, 
David  J.  Hill  and  Gail  lard  Hunt,  Washington,  1906,  House  Doc.  No.  326, 
59  Cong.,  2  Sess. ;  Frederick  Van  Dyne,  Citizenship  of  the  United  States, 
Rochester,  1904;  same  author,  Law  of  Naturalization  of  the  United  States, 
Washington,  1907 ;  Compilation  of  Certain  Departmental  Circulars  relating 
to  Citizenship,  Registration  of  American  Citizens,  Issuance  of  Passports,  etc., 
Department  of  State,  1916. 

For  bibliographies  of  the  extensive  literature  relating  to  Nationality  see 
Clunet,  Tables  Generates,  I,  559-587,  915-919;  Bonfils-Fauchille,  7  ed.,  §  417; 
E.  M.  Borchard,  Diplomatic  Protection,  §320;  Carlo  Bisocchi,  Acquisto  e 
Perdita  della  Nazioyialita,  Milan,  1907,  xxiii-xxxiv;  A.  G.  de  Lapradelle,  De 
la  Nationalite  d'Oriqine,  Paris,  1893,  ix-xvii. 

See,  also,  Edouard  de  Germmy,  Les  Conflits  de  Nationalites  devant  les  Juri- 
dictions  Internationales,  Paris,  1916;  Ernest  Lehr,  La  Nationalite  dans  les 
Principaux  Etats  du  Globe,  Paris,  1909 ;  Sir  Francis  T.  Piggott,  Nationality, 
2  parts,  London,  1906 ;  E.  S.  Zeballos,  La  Nationalite  (au  point  de  vue  de  la 
legislation  comparee  et  du  droit  prive  humain)^  French  translation  by  Andre 
Bosq,  3  vols.,  Paris,  1914-1916;  E.  Oudin,  "Etat  des  traites  et  lois  relatifs  a  la 
Nationalite  et  la  Naturalisation  en  vigueur  dans  les  principaux  pays  au  15  avril 
1917",  Clunet,  XLIV,  817-841;  W.  W.  Willoughby,  "Citizenship  and  Al- 
legiance in  Constitutional  and  International  Law",  Am..  J.,  I.  914;  D.  O. 
McGovnev,  "American  Citizenship",  Columbia  Law  R.,  XI,  231  and  326; 
Richard  W.  Flournov,  Jr.,  "Observations  on  the  New  German  Law  of  Nation- 
ality", Am,  J.,  VIII,  477  (text  of  law  printed  in  Supp..  Am.  ./.,  VIII,  217) ; 
T.  H.  Thiesing,  "Dual  Allegiance  in  the  German  Law  of  Nationality  and 
American  Citizenship",  Yale  Law  J.,  XXVII,  479. 

610 


IN    GENERAL  [§342 

not  be  disposed  to  shield  him  from  the  conflicting  although  reason- 
able demands  of  a  foreign  country  within  whose  territory  he  may 
happen  to  be,  so  long  as  he  remains  therein.^  In  the  case  of  an 
adult,  it  will  be  found  that  if  the  claim  to  his  allegiance  has  a 
just  foundation,  the  retention  of  his  national  character,  according 
to  the  view  of  the  United  States,  does  not  depend  upon  his  re- 
maining within  the  physical  control  of  his  sovereign.  Hence, 
until  his  expatriation,  he  may  commonly  invoke  its  aid  to  pro- 
tect himself  from  the  exactions  of  any  other.^ 

In  a  broad  sense  international  law  limits  the  right  of  a  State 
to  impress  its  national  character  upon  an  individual,  or  to  pre- 
vent that  character  from  being  lost  or  transferred.  The  freedom 
of  action  of  each  member  of  the  family  of  nations  is,  however, 
wide.  That  circumstance,  as  well  as  the  tendency  of  States  to 
declare  by  statute  what  persons  are  deemed  to  be  nationals  by 
birth,  and  how  nationality  may  be  acquired  or  lost,  serve  to  ob- 
scure from  view  the  final  test  of  the  reasonableness  of  the 
local  law. 

Citizenship,  as  distinct  from  nationality,  is  a  creature  solely 
of  domestic  law.'  It  refers  to  rights  which  a  State  sees  fit  to  con- 
fer upon  certain  individuals  who  are  also  its  nationals.  When 
the  Constitution  or  laws  of  the  United  States  declare  that  persons 
born  under  specified  circumstances,  or  changing  their  allegiance 
by  certain  processes,  shall  become  American  citizens,  citizenship 
may  be  truly  regarded  as  a  source  of  American  nationality ;  for 
the  citizen  of  the  United  States  is  necessarily  also  a  national  of 
the  United  States.  It  is  to  be  observed,  however,  that  the  United 
States  claims  as  nationals  numerous  persons  upon  whom  it  has 
not  conferred  rights  of  citizenship.  International  law  is  concerned 
with  American  citizenship  only  in  so  far  as  it  emphasizes  or  estab- 
lishes simultaneously  American  nationality. 

^  Double  Allegiance,  infra,  §  372. 

2  This  is  indicated  in  the  attitude  of  the  United  States  respecting  the  status 
of  naturalized  American  citizens.  The  Right  of  Expatriation,  infra,  §§376- 
379. 

3  "National  character,  in  legal  and  diplomatic  discussion,  usually  is  de- 
noted by  the  term  'citizenship.'  In  most  cases  this  is  not  misleading,  since 
citizenship  is  the  great  source  of  national  character.  It  is  not,  however,  the 
only  source.  A  temporary  national  character  may  be  derived  from  service 
as  a  seaman,  and  also,  in  matters  of  belligerency,  from  domicil,  so  that  there 
may  exist  between  one's  citizenship  and  his  national  character,  for  certain 
purposes,  an  actual  diversity.  .  .  .  Citizenship,  strictly  speaking,  is  a  term 
of  municipal  law,  and  denotes  the  possession  within  the  particular  State  of 
full  civil  and  political  rights,  subject  to  special  disqualifications,  sii-^h  as 
minority  or  sex.  The  conditions  on  which  citizenship  is  acquired  are  rvrgulated 
by  municipal  law."     Moore,  Dig.,  Ill,  273. 

611 


§  343]  NATIONALITY 

2 

THE    ACQUISITION    OF    AMERICAN    NATIONALITY    BY 

BIRTH 


Citizenship 

(1) 
By  Right  of  Place.     Jure  Soli 

(a) 
§  343.   The  Common  Law. 

According  to  the  common  law  every  child  born  "within  the 
ligeance  and  jurisdiction"  of  the  King  of  England  was  regarded 
as  his  subject.^  It  is  not  true  that  all  persons  born  within  the 
King's  domain  were  within  his  "  ligeance  and  jurisdiction."  Thus, 
the  child  of  an  alien  enemy  born  in  British  territory  within  hostile 
military  occupation  was  regarded  as  outside  thereof;  likewise 
the  child  born  within  the  realm  whose  father  was  an  alien,  and 
at  the  time  of  the  birth  of  the  child,  a  diplomatic  officer  accredited 
to  the  Crown  by  a  foreign  sovereign.^  As  these  were,  however, 
the  only  instances  where  persons  born  within  the  royal  domain 
failed  to  acquire  English  nationality,  it  became  natural  to  assert 
as  a  rule  of  law,  commonly  known  as  the  jiis  soli,  that,  subject 
to  these  exceptions,  a  person  became  a  natural-born  subject  by 
reason  of  his  birth  within  the  King's  domain.^ 

(b) 

§  344.   The  Laws  of  the  United  States. 

It  was  not  until  1866  that  any  law  was  enacted  in  the  United 
States  indicating  what  persons  born  within  its  territory  of  alien 

^  Calvin's  Case,  7  Rep.  18a ;  A.  Cockburn,  Nationality,  7 ;  A.  V.  Dicey, 
Conflict  of  Laws,  2  ed.,  166-167 ;  also  authorities  cited  in  United  States  v. 
Wong  Kim  Ark,  169  U.  S.  649,  656  ;  "  De  V ap-plicnhilite  du  jus  soli  en  matVere 
de  nationalite,  by  Richard  Kleen,  Rev.  Gen.,  Ill,  429. 

2  Calvin's  Case.  7  Rep.  18  a;  A.  V.  Dicey,  Conflict  of  Laws.  2  ed.,  167-168. 
Also  Story,  J.,  in  Inglis  v.  Sailor's  Snug  Harbour,  3  Pet.  99,  155-156,  164. 

^  "The  exceptional  and  unimportant  instances  in  which  birth  within  the 
British  dominions  does  not  of  itself  confer  British  nationality  are  due  to  the 
fact  that,  though  at  common  law  nationality  or  allegiance  in  substance  de- 
pended on  the  place  of  a  person's  birth,  it  in  theory  at  least  depended,  not  upon 
the  locality  of  a  man's  birth,  but  upon  his  being  born  within  the  jurisdiction 
and  allegiance  of  the  king  of  England  ;   and  it  might  occasionally  happen  that 

612 


THE    LAWS    OF    THE    UNITED    STATES  [§  344 

parentage  were  to  be  regarded  as  nationals.  Up  to  that  time  the 
opinion  was  oftentimes  expressed,  judicially  and  otherwise,  that 
the  rule  of  the  common  law  would  be  followed,  in  cases  where 
the  parents  were  temporarily  residing  in  the  United  States  at 
the  time  of  the  birth  of  the  child,^  as  well  as  in  those  where  they 
were  domiciled  therein.^ 

In  1866  the  Civil  Rights  Act  became  a  law.  According  to  it 
all  persons  born  in  the  United  States  and  not  subject  to  any 
foreign  power,  excluding  Indians  not  taxed,  are  declared  to  be 
citizens  of  the  United  States.' 

In  1868  the  Fourteenth  Amendment  to  the  Constitution  was 
declared  ratified  by  a  joint  resolution  of  the  Congress  and  was  duly 
promulgated.     It  provided  that 

all  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.^ 

Prior  to  1897,  the  Supreme  Court  of  the  United  States  had 
made  no  decision  respecting  the  application  of  the  Fourteenth 
Amendment  to  a  child  born  within  the  United  States  to  foreign 
parents.^     In  that  year,  however,  that  Court,  in  the  case  of  United 

a  person  was  born  within  the  dominions  without  being  born  within  the  al- 
legiance, or,  in  other  words,  under  the  protection  and  control  of  the  Crown." 
A.  V.  Dicey,  Conflict  of  Laws,  2  ed.,  781. 

1  See,  for  example.  Lynch  v.  Clarke,  1  Sandf .  Ch.  583  ;  Munro  v.  Merchant, 
26  Barb.  383,  400. 

2  See  Opinion  of  Attorney-General  Black,  9  Ops.  Attys.-Gen.,  373 ;  Opin- 
ion of  Attorney-General  Bates,  10  Ops.  Attys.-Gen.,  382 ;  Report  on  Citizen- 
ship of  the  United  States,  73  ;  Van  Dyne  on  Citizenship,  1-7. 

Declared  Mr.  Justice  Gray,  in  United  States  v.  Wong  Kim  Ark,  169  United 
States,  649,  674  :  "It  is  beyond  doubt  that,  before  the  enactment  of  the  Civil 
Rights  Act  of  1866  or  the  adoption  of  the  Constitutional  Amendment,  all 
white  persons,  at  least,  born  within  the  sovereignty  of  the  United  States, 
whether  children  of  citizens  or  foreigners,  excepting  only  children  of  ambas- 
sadors or  public  ministers  of  a  foreign  government,  were  native-born  citizens 
of  the  United  States." 

3  Rev.  Stat.  §  1992 ;   14  Stat.  27,  U.  S.  Comp.  Stat.  1918,  §  3946. 

■•  Section  1.  See  Mr.  Bayard,  Secy,  of  State,  to  Mr.  de  Bounder,  Belgian 
Minister,  April  2,  1888,  For.  Rel.  1888,  I,  48,  Moore,  Dig.,  Ill,  277. 

^  The  Court  had,  however,  in  the  case  of  Elk  v.  Wilkins,  112  U.S.  94,  ex- 
pressed the  opinion  "that  an  Indian  born  a  member  of  one  of  the  Indian  tribes 
within  the  United  States,  which  still  existed  and  was  recognized  as  an  Indian 
tribe  by  the  United  States,  who  had  voluntarily  separated  himself  from  his 
tribe,  and  taken  up  his  residence  among  the  white  citizens  of  a  State,  but  who 
did  not  appear  to  have  been  naturalized,  or  taxed,  or  in  any  way  recognized 
or  treated  as  a  citizen,  either  by  the  United  States  or  by  the  State,  was  not  a 
citizen  of  the  United  States,  as  a  person  born  in  the  United  States  and  '  subject 
to  the  jurisdiction  thereof ',  within  the  meaning  of  the  clause  in  question." 
Gray,  J.,  in  United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  680. 

613 


§  344]  NATIONALITY 

States  V.  Wong  Kim  Ark,  decided  that  a  child  born  in  the  United 
States  of  parents  of  Chinese  descent  who,  at  the  time  of  his  birth, 
were  subjects  of  the  Emperor  of  China,  and  domiciled  within  the 
United  States,  where  they  were  engaged  in  business,  became, 
at  the  time  of  his  birth,  a  citizen  of  the  United  States,  by  virtue 
of  the  first  clause  of  the  Fourteenth  Amendment.^  In  the  opinion 
of  the  Court,  delivered  by  Mr.  Justice  Gray,  it  was  stated  that  the 
Amendment  should  be  interpreted  in  the  light  of  the  common 
law ;  that  the  rule  of  that  law  respecting  nationality  by  birth  of  a 
child  of  alien  parents  was  in  force  in  all  of  the  English  Colonies 
on  the  American  continents  until  the  Declaration  of  Independence, 
and  continued  to  prevail  thereafter  in  the  United  States;  that 
there  was  little  ground  for  the  theory  that  at  the  time  of  the 
adoption  of  the  Fourteenth  Amendment,  there  was  any  settled 
and  definite  rule  of  international  law  generally  recognized  by 
civilized  nations  inconsistent  with  the  ancient  rule  of  citizenship 
by  birth  within  the  dominion;  that  in  the  forefront  both  of  the 
Amendment  and  of  the  Civil  Rights  Act  of  1866,  the  principle  of 
citizenship  by  birth  within  the  domain  was  reaffirmed  in  the  most 
explicit  and  comprehensive  terms;  that  notwithstanding  consid- 
erations that  might  influence  the  legislative  or  executive  branch 
of  the  Government  to  decline  to  admit  persons  of  the  Chinese 
race  to  the  status  of  citizens,  there  were  none  that  could  constrain 
or  permit  the  judiciary  to  refuse  to  give  full  effect  to  the  peremp- 
tory and  explicit  language  of  the  Amendment,^ 

There  appears  to  be  no  reason  to  anticipate  a  different  conclu- 
sion in  case  the  alien  parents  of  a  child  born  in  the  United  States 
were  temporary  sojourners,  and  not  domiciled  therein,^  The 
Department  of  State  is  not,  at  the  present  time,  in  view  of  the 

1 169  U.  S.  649. 

2  Id.,  653-654,  657,  658,  667,  675,  694.  See,  also,  Benny  v.  O'Brien,  58 
N.  J.  L.  36 ;  In  re  Giovanna,  93  Fed.  659.  Also  In  re  Look  Tin  Sing,  21  Fed. 
905,  and  other  cases  of  children  born  in  the  United  States  of  Chinese  parent- 
age, cited  in  Report  on  Citizenship  of  the  United  States,  by  Messrs.  Scott,  Hill 
and  Hunt,  73-74.  It  is  there  observed  that  the  question  relative  to  citizen- 
ship of  a  child  of  parents  who  may  not  become  citizens  has  "arisen  in  con- 
nection with  alien  parents  who  were  domiciled  in  this  country,  and  not  in 
connection  with  persons  here  temporarily.  Moreover,  the  cases  found  have 
always  concerned  the  citizenship  of  persons  of  Chinese  parentage." 

3  inasmuch  as  the  Supreme  Court  interprets  the  Fourteenth  Amendment 
in  the  light  of  the  common  law,  and  as  that  law  pays  no  heed  to  the  domicile 
of  the  parents  in  determining  the  nationality  of  the  child,  it  would  be  difficult 
if  not  impossible  for  that  Tribunal  to  raise  a  distinction  based  upon  the  domicile 
of  the  former,  without  abandoning  the  theory  of  interpretation  which  has  been 
adopted.  Nor  do  the  dicta  contained  in  thie  opinion  of  the  Court  in  United 
States  V.  Wong  Kim  Ark,  169  U.  S.  649,  at  682,  687  and  693,  encourage  behef 
that  such  a  change  of  theory  is  to  be  anticipated. 

614 


BY    RIGHT    OF   BLOOD.     JURE    SANGUINIS       [§  345 

decisions  of  the  courts,  disposed  to  raise  a  distinction  based  upon 
the  domicile  of  the  parents."^ 

Following  the  exceptions  of  the  common  law,  a  child  born  in 
the  United  States  would  not  be  regarded  as  acquiring  American 
nationality  by  birth,  in  case  either  the  alien  father  was  a  diplo- 
matic officer  accredited  to  the  United  States,^  or  in  case  the  parents 
were  alien  enemies,  and  the  birth  of  the  child  occurred  in  a  place 
under  hostile  military  occupation.^ 

(2) 

§  345.   By  Right  of  Blood.     Jure  Sanguinis. 

By  right  of  blood,  jure  saiiguinis,  a  child  may  at  birth  acquire 
the  nationality  of  his  father.  Numerous  States  regard  as  their 
respective  nationals  children  born  to  their  own  subjects  or  citizens 
in  foreign  lands.'*  The  United  States  makes  such  a  claim,  con- 
ferring its  citizenship  as  well  as  its  nationality  upon  children 

1  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  Towle,  American  Ambassador  at 
Berlin,  Mar.  8,  1907,  For.  Rel.  1907,  I,  516 ;  also  Mr.  Fish,  Secy,  of  State, 
to  Mr.  Marsh,  May  19,  1871,  MS.  Inst.  Italy,  I,  350,  Moore,  Dig.,  Ill,  278; 
Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Iddings,  Charge  at  Rome,  Aug.  8, 
1901,  For.  Rel.  1901,  303.  Compare  Mr.  Frelinghuysen,  Secy,  of  State,  to 
Mr.  Kasson,  Minister  to  Germany,  Jan.  15,  1885,  For.  Rel.  1885,  394,  Moore, 
Dig.,  Ill,  278;  Mr.  Bayard,  Secy,  of  State,  to  Mr  Winchester,  Minister  to 
Switzerland,  Nov.  28,  1885,  For.  Rel.  1885,  814,  Moore,  Dig.,  Ill,  279. 

Relative  to  the  case  of  a  foundling  whose  existence  first  became  known  in 
Philadelphia,  and  who  was,  therefore,  regarded  as  a  native  citizen  of  the  United 
States,  see  Mr.  Hay,  Secy,  of  State,  to  Mr.  Leishman,  Minister  to  Switzer- 
land, July  12,  1899,  For.  Rel.  1899,  760,  Moore,  Dig.,  Ill,  281. 

2  Geofroy  v.  Riggs,  133  U.  S.  258,  264 ;  United  States  v.  Wong  Kim  Ark, 
169  U.  S.  649,  682  ;  Mr.  Wharton,  Acting  Secy,  of  State,  to  Mr.  Grant,  Minister 
to  Austria-Hungary,  Aug.  10,  1891,  For.  Rel.  1891,  21,  Moore,  Dig.,  Ill,  281. 
See,  also,  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  White,  American  Charge, 
Feb.  15,  1907,  For.  Rel.  1907,  I,  38. 

3  United  States  v.  Wong  Kim  Ark,  169  U.  S.  649,  682  ;  Inglis  v.  Sailor's  Snug 
Harbour,  3  Pet.  99.  In  the  latter  case  (p.  156)  Mr.  Justice  Story  said,  in  the 
course  of  the  opinion  of  the  Court :  "Thus,  the  children  of  enemies,  bom  in  a 
place  within  the  dominions  of  another  sovereign,  then  occupied  by  them,  by 
conquest,  are  still  aliens ;  but  the  children  of  the  natives  born  during  such 
temporary  occupation  by  conquest,  are,  upon  a  re-conquest,  or  re-occupation 
by  the  original  sovereign,  deemed,  by  a  sort  of  postliminy,  to  be  subjects  from 
their  birth,  although  they  were  then  under  the  actual  sovereignty  and  al- 
legiance of  an  enemy." 

*  The  laws  of  several  States  making  such  a  claim  are  enumerated  in  Ap- 
pendix III  of  the  Report  on  Citizenship  of  the  United  States,  by  Messrs. 
Scott,  Hill  and  Hunt. 

Concerning  the  Enghsh  statutes,  see  Sir  F.  T.  Piggott,  Nationality,  London, 
1907,  47-56. 

According  to  the  Belgian  law  on  the  acquisition  and  loss  of  nationality, 
of  June  8,  1909,  "a  child  born,  even  in  a  foreign  country,  of  either  a  Belgian 
father  or  a  Belgian  mother,  if  the  father  has  no  fixed  nationality",  is  deemed 
to  be  a  Belgian.  See  text  in  Am.  J.,  IV,  Supp.,  167.  See,  also,  §4,  Part  II, 
of  German  Imperial  and  State  Citizeaship  Law  of  July  22,  1913,  Am.  J.,  VIII, 
Supp.,  217. 

615 


§  345]  NATIONALITY 

born  under  the  following  conditions  specified  in  the  Act  of  Congress 
of  February  2,  1855  : 

All  children  heretofore  born  or  hereafter  born  out  of  the 
limits  and  jurisdiction  of  the  United  States,  whose  fathers 
were  or  may  be  at  the  time  of  their  birth  citizens  thereof,  are 
declared  to  be  citizens  of  the  United  States ;  but  the  rights  of 
citizenship  shall  not  descend  to  children  whose  fathers  never 
resided  in  the  United  States.^ 

The  two  conditions  thus  made  essential  to  the  acquisition  of 
American  citizenship  by  birth,  in  the  case  of  a  child  born  outside 
of  the  limits  and  jurisdiction  of  the  United  States  are,  the  American 
citizenship  of  the  father  at  the  time  of  the  birth  of  the  child,  and 
the  residence  of  the  father  at  some  time  within  the  United  States.- 
Residence  of  the  father  in  an  American  community  in  a  foreign 
State,  where  he  is  subjected  to  the  extraterritorial  jurisdiction 
of  the  United  States,  is  not  regarded  by  the  Department  of  State 
as  compliance  with  the  statutory  requirement  that  he  shall  have 
resided  within  the  United  States.^ 

1  Rev.  Stat.  §  1993.  See,  also,  Act  of  1790,  1  Stat.  104,  Chap.  3 ;  Act  of 
1795,  1  Stat.  415,  Chap.  20,  Sec.  3 ;  Act  of  1802,  2  Stat.  155,  Chap.  28,  Sec.  4. 
Concerning  this  legislation  see  F.  Van  Dyne,  Citizenship,  32-33 ;  also  Report 
on  Citizenship  of  the  United  States,  77-78.  It  may  here  be  observed  that 
§  6  of  the  Act  of  March  2,  1907,  34  Stat.  1229,  has  reference  to  the  retention, 
rather  than  the  acquisition  of  citizenship  by  birth,  of  children  bom  outside 
of  the  limits  of  the  United  States.  Whether  the  Act  of  1855,  and  the  Statute 
of  25,  Edw.  Ill,  providing  for  the  right  of  inheritance  by  foreign-born  chil- 
dren of  English  subjects,  were  declaratorv  of  the  common  law,  see  United 
States  V.  Wong  Kim  Ark,  169  U.  S.  649,  669-674. 

2  In  1873  Mr.  Fish,  Secy,  of  State,  in  a  communication  to  Mr.  Washburne, 
Minister  to  France,  expressed  the  opinion  that  Congress  intended  that  a  dis- 
tinction should  be  observed  between  the  right  of  citizenship  conferred  by  the 
Act  of  1855,  and  the  "full  citizenship"  of  persons  born  within  the  territory 
and  jurisdiction  of  the  United  States,  inasmuch  as  "those  declared  to  be 
citizens  by  the  Act  could  not  transmit  citizenship  to  their  children  without 
having  become  residents  within  the  United  States ;  the  heritable  blood  of 
citizenship  was  thus  associated  unmistakably  with  residence  within  the  coun- 
try, which  was  thus  recognized  as  essential  to  full  citizenship."  For.  Rel. 
1873,  I,  256,  Moore,  Dig.,  Ill,  282.  See,  also.  Report  on  Citizenship,  77-78; 
F.  Van  Dyne,  Citizenship  of  the  United  States,  32-34 ;  Barzizas  v.  Hopkins, 
2  Randolph,  276 ;  State  v.  Adams,  45  Iowa,  99 ;  Browne  v.  Dexter,  66  Calif. 
89 ;  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Terres,  Sept.  25,  1893,  MS.  Inst. 
Haiti,  III,  346,  Moore,  Dig.,  Ill,  287  ;  Mr.  Gresham,  Secy,  of  State,  to  Captain 
Crowninshield,  U.  S.  N.,  Feb.  23,  1895,  For.  Rel.  1895,  I,  426;  Moore,  Dig., 
Ill,  284  ;  Mr.  Hill,  Acting  Secy,  of  State,  to  Mr.  White,  American  Ambassador 
at  Berlin,  June  14,  1901,  For.  Rel.  1901,  179;  Moore,  Dig.,  III.  285;  Case  of 
Clemens  Belling,  For.  Rel.  1907,  II,  975 ;  Mr.  Bacon,  Acting  Secy,  of  State, 
to  Mr.  Merry,  American  Minister,  May  11,  1907,  id.,  II,  920;  decision  of 
Court  of  Appeals  of  Santiago,  Chile,  enclosed  in  communication  from  Mr. 
Janes,  American  Charge,  to  Mr.  Root,  Secv.  of  State,  Aug.  5,  1907,  For.  Rel. 
1907,  I,  124. 

^  See  circular  instructions  to  American  diplomatic  and  consular  officers 
in  China  and  Turkey,  July  27,  1914,  enclosing  memorandum  of  Mr.  Johnson, 

616 


BY    RIGHT    OF    PLACE.      JURE  SOLI  [§  346 

As  American  citizenship  is  not  derived  through  the  mother,  it  is 
immaterial  how  she  be  regarded,  provided  she  is  the  lawful  wife  of 
an  American  citizen.^  If,  however,  the  child  is  illegitimate  and 
born  abroad  of  an  American  mother,  the  Department  of  State 
has  in  recent  years  held  in  a  number  of  cases  that  the  child  is  an 
American  citizen.- 

In  interpreting  the  Act  of  1855,  there  would  appear  to  be  no 
ground  for  a  distinction  between  children  of  native,  and  those 
of  naturalized  parents ;  ^  or  between  children  of  parents  domi- 
ciled abroad,  and  those  of  parents  temporarily  residing  abroad."* 


American  Nationality  as  Not  Derived  from  Citizenship 

(1) 
§  346.   By  Right  of  Place.     Jure  Soli 

The  limits  of  American  territory  embrace  lands  with  respect 
to  the  inhabitants  of  which  neither  the  constitutional  nor  statutory 

Solicitor  of  the  Dept.  of  State,  June  22,  1914,  in  the  matter  of  the  citizenship 
of  Ben  Zion  Lillienthal,  Circulars  Relating  to  Citizenship,  1916,  p.  43. 

1  Report  on  Citizenship,  77,  citing  the  early  cases  of  Charles  v.  IMonson 
and  Brimfield  Mfg.  Co.  (1835),  17  Pick.  70;  Davis  v.  HaU  (1818),  1  Nott  and 
McCord,  292 ;  Ludlam  v.  Ludlam,  31  Barb.  486. 

With  respect  to  naturalization  by  marriage,  see  Nationality  of  Married 
Women,  infra,  §§365-366. 

A  foreign  marriage  valid  where  contracted  may  not  be  accorded  full  recog- 
nition as  such  in  the  United  States,  where  the  union  is  one  regarded  as  con- 
trary to  a  local  and  well-defined  public  policy.  In  such  case  the  issue  of  the 
union  would  not  be  regarded  as  within  the  scope  of  the  statute. 

^  These  decisions  necessarily  involve  a  free  construction  of  the  Act  of  1855 
which  provides  for  the  citizenship  of  children  born  abroad  of  American  fathers, 
but  makes  no  specific  provision  for  the  citizenship  of  children  born  abroad  of 
unmarried  American  mothers. 

Compare  opinion  of  Mr.  Lowndes,  for  the  Commission,  LTnited  States  and 
Spanish  Claims  Commission  (1871),  Moore,  Arbitrations,  III,  2462,  Moore, 
Dig.,  Ill,  285. 

See  Mr.  Hay,  Secy,  of  State,  to  Mr.  Lardy,  Swiss  Charg(^,  Aug.  23,  1901, 
relative  to  the  effect  of  the  laws  of  New  York  legitimatizing  a  child  by  the 
marriage  of  its  parents  after  its  birth,  in  a  case  where  the  father  was  a  citizen 
of  New  York,  and  the  child  born  out  of  wedlock  in  France,  to  a  French  mother 
who  was  afterwards  married  to  the  father  in  London.  For.  Rel.  1901,  512, 
Moore,  Dig.,  Ill,  285.  See,  also,  opinion  of  Mr.  Ames,  Acting  Atty.-Gen., 
addressed  to  the  Secy,  of  State,  April  7,  1920,  in  the  course  of  which  it  was 
said :  "The  State  Department  has  for  many  years  held  that  a  child  born  out 
of  wedlock  which,  by  the  laws  of  the  father's  domicile  has  been  legitimated, 
is  a  citizen  of  the  United  States  within  the  meaning  of  Revised  Statutes, 
section  1993.  There  appear  to  be  no  considerations  of  public  policy  which 
require  a  different  decision." 

3  Oldtown  V.  Bangor,  58  Me.  353  ;  Sasportas  v.  De  La  Motta,  10  Rich.  Eq. 
38. 

^  In  United  States  v.  Gordon,  5  Blatchf .  18,  where  a  child  was  born  to  Ameri- 
can parents  on  an  American  merchant  vessel  while  at  a  foreign  port  in  the  course 

617 


§  346]  NATIONALITY 

provisions  for  the  acquisition  of  American  citizenship  by  birth 
are  necessarily  applicable.  Nevertheless,  the  United  States  may 
reasonably  claim  as  nationals  persons  born  to  foreign  parents  in 
territory  which,  in  an  international  sense,  is  American,  and  yet 
which,  in  a  domestic  sense,  is  not  a  part  of  the  United  States.^ 
It  would  be  consistent  with  the  policy  applied  in  situations  where 
American  nationality  is  derived  by  citizenship,  if  such  a  claim 
were  made  with  respect  to  persons  born  in  such  a  territory  regard- 
less of  the  domicile  or  residence  of  their  alien  parents.  More- 
over, there  is  ground  for  contention  that  in  view  of  the  traditional 
assertions  of  the  United  States  under  the  jus  soli,  the  United  States 
does,  by  implication  and  without  the  aid  of  affirmative  enactment, 
make  such  a  claim  automatically  in  the  case  of  persons  born  in 
all  territories  under  its  flag.^  The  Department  of  State  has, 
however,  decided  otherwise,  concluding  that  children  born  to 
alien  parents  in  the  Philippines  subsequent  to  their  annexation, 
lack  American  nationality.^  The  United  States  does  not  appear 
to  have  manifested,  at  least  by  its  legislation,  a  broad  claim  gen- 
erally to  the  allegiance  of  persons  born  in  territories  acquired  by 
cession  from  Spain  under  the  treaty  of  ISOS."*    Children  born  in 

of  a  voyage,  the  Court  laid  stress  on  the  fact  that  the  American  domicile  of 
the  parents  remained  unchanged.  See,  also,  Albany  v.  Derby,  30  Vt.  718; 
Lynden  v.  Danville,  28  Vt.  809.     Compare  Ware  v.  Wisner,  50  Fed.  310. 

1  Gonzales  v.  WilUams,  192  U.  S.  1 ;  American  Railroad  of  Porto  Rico  v. 
Didricksen,  227  U.  S.  145. 

According  to  the  Act  of  April  30,  1900,  in  relation  to  the  Territory  of  Hawaii, 
Chap.  339,  §  4,  31  Stat.  141,  U.  S.  Comp.  Stat.  1918,  §  3647,  "all  persons  who 
were  citizens  of  the  Republic  of  Hawaii"  on  Aug.  12,  1898,  were  declared  to 
be  "citizens  of  the  United  States  and  citizens  of  the  Territory  of  Hawaii." 

2  This  would  be  due  to  the  circumstance  that  apart  from  the  origin  of  the 
jus  soli,  and  regardless  of  territorial  limits  to  be  observed  in  applying  the  Con- 
stitution or  particular  Acts  of  Congress,  the  United  States  has  in  fact  con- 
stantly deemed  the  jus  soli  to  be  declaratory  of  the  principle  of  international 
law  fairly  applicable  in  determining  a  rule  of  establishing  the  acquisition  of 
American  nationality  by  birth.  See  opinion  of  Mr.  Justice  Gray,  in  United 
States  V.  Wong  Km  Ark,  169  U.  S.  649,  667. 

^  It  is  understood  that  the  Department  of  State,  upon  the  advice  of  its  law 
officers,  made  known  such  a  conclusion  in  a  communication  to  the  War  De- 
partment in  1912.  The  author  has  examined  the  memorandum  upon  which 
it  was  based. 

*  According  to  the  Act  of  April  12,  1900,  in  relation  to  Porto  Rico,  §  7, 
Chap.  191,  31  Stat.  79,  U.  S.  Comp.  Stat.  1918,  §  3754,  all  inhabitants  con- 
tinuing to  reside  in  Porto  Rico  who  were  Spanish  subjects  on  April  11,  1899, 
and  then  residing  in  Porto  Rico,  "and  their  children  born  subsequent  thereto, 
shall  be  deemed  and  held  to  be  citizens  of  Porto  Rico,  and  as  such  entitled 
to  the  protection  of  the  United  States,  except  such  as  shall  have  elected  to 
preserve  their  allegiance  to  the  Crown  of  Spain"  on  or  before  April  11,  1900, 
in  accordance  with  the  provisions  of  the  treaty  of  peace  between  the  United 
States  and  Spain. 

According  to  the  Act  of  March  2,  1917,  Chap.  145,  §  5,  39  Stat.  953,  U.  S. 
Comp.  Stat.  1918,  §  3803bb,  all  citizens  of  Porto  Rico,  as  defined  by  §  7  of  the 
Act  of  April  12,  1900,  and  all  natives  of  Porto  Rico  who  were  temporarily 

618 


BY   RIGHT    OF   BLOOD.     JURE   SANGUINIS        [§  347 

Porto  Rico  or  in  the  Philippine  Islands  to  transient  alien  so- 
journers therein  do  not  appear  to  have  been  regarded  as  acquiring 
American  nationality  at  birth.  Nor  is  it  understood  that  a  claim 
is  made  to  the  allegiance  of  children  of  foreign  parentage  born 
under  like  circumstances  in  the  Virgin  Islands.^ 

(2) 

§  347.   By  Right  of  Blood.     Jure  Sanguinis 

If  the  Act  of  Congress  of  February  2,  1855,  concerning  the 
acquisition  of  American  citizenship  by  birth  by  reason  of  the 
citizenship  of  the  father,  indicates  generally  the  policy  of  the 
United  States,^  a  like  claim,  similarly  restricted,  might  be  made 
in  the  case  of  children  born  in  foreign  States  to  American  nationals, 
however  lacking  in  American  citizenship,  and  whether  residing 
or  temporarily  sojourning  in  the  place  of  birth.     Thus  the  child 

absent  from  that  island  on  April  11,  1899,  "and  have  since  returned  and  are 
permanently  residing  in  that  island,  and  are  not  citizens  of  any  foreign  coun- 
try", were  declared  to  be  and  were  to  be  deemed  to  be  citizens  of  the  United 
States,  provided  that  any  person  within  this  category  might  retain  his  exist- 
ing political  status  by  making  a  specified  declaration  under  oath,  of  his  de- 
cision to  do  so,  within  a  fixed  time.  Special  opportunity  was  provided  also 
for  a  person  absent  from  the  island  during  the  period  when  this  proviso  might 
be  availed  of,  to  take  advantage  of  the  privilege  accorded  by  it.  The  same 
section  of  the  Act  provided  further,  "That  any  person  who  is  born  in  Porto 
Rico  of  an  alien  parent  and  is  permanently  residing  in  that  island  may,  if  of 
full  age,  within  six  months  after  the  taking  effect  of  this  Act,  or  if  a  minor, 
upon  reaching  his  majority  or  within  one  year  thereafter,  make  a  sworn  declara- 
tion of  allegiance  to  the  United  States  before  the  United  States  District  Court 
for  Porto  Rico",  setting  forth  specified  facts  required,  "and  from  and  after 
the  making  of  such  declaration  shall  be  considered  to  be  a  citizen  of  the  United 
States."  Possibly  the  purpose  of  this  Act  was  to  confer  citizenship  (in  a 
domestic  sense)  upon  persons  who  were  already  deemed  to  be  nationals  of  the 
United  States. 

According  to  the  Act  in  relation  to  the  Philippine  Islands  of  Aug.  29,  1916, 
Chap.  416,  §  2,  39  Stat.  546,  U.  S.  Comp.  Stat.  1918,  §  3809,  all  inhabitants 
of  the  Philippine  Islands  who  were  Spanish  subjects  on  April  11,  1899,  "and 
then  resided  in  said  islands,  and  their  children  born  subsequent  thereto,  shall 
be  deemed  and  held  to  be  citizens  of  the  Philippine  Islands",  except  such  as 
might  have  elected  to  preserve  their  allegiance  to  the  Crown  of  Spain  in  ac- 
cordance with  the  provisions  of  the  treaty  of  peace  of  1898,  and  except  such 
others  as  might  have  since  become  citizens  of  some  other  country.  The  same 
section  embraced  the  proviso  that  the  Philippine  Legislature  was  authorized 
to  provide  for  the  acquisition  of  a  Philippine  citizenship  "by  those  natives  of 
the  Philippine  Islands  who  do  not  come  within  the  foregoing  provisions,  the 
natives  of  the  insular  possessions  of  the  United  States,  and  such  other  persons 
residing  in  the  Philippine  Islands  who  are  citizens  of  the  United  States,  or  who 
could  become  citizens  of  the  United  States  under  the  laws  of  the  United  States 
if  residing  therein." 

See  Mr.  Wilson,  Acting  Secy,  of  State,  to  the  Secy,  of  War,  Sept.  11,  1911, 
For.  Rel.  1911,  71,  in  the  Case  of  Jose  Velasco. 

^  No  requirement  in  the  matter  appears  to  be  laid  down  in  Art.  VI  of  the 
treaty  of  cession  of  Aug.  4,  1916,  Am.  J.,  XI,  Supp.,  53,  57. 

2  Acquisition  of  American  Citizenship  by  Right  of  Blood,  §  345. 

619 


§  347]  NATIONALITY 

born  in  Germany,  whose  father  was  a  citizen  of  the  Philippine 
Islands,  might  be  regarded  as  acquiring  American  nationality, 
with  as  much  reason  as  if  the  father  were  a  citizen  of  the  United 
States.  The  United  States  has  not  as  yet,  however,  enacted  a  law 
indicative  of  such  a  claim. 


§  348.   The  Attitude  of  International  Tribunals. 

The  inquiry  whether  the  jus  soli  or  the  jus  sanguinis  should  be 
applied  in  determining  nationality  by  birth  has  frequently  con- 
fronted international  courts  of  arbitration,  where  one  State 
has  demanded  of  another  an  indemnity  in  behalf  of  a  per- 
son regarded  by  the  latter  as  one  of  its  own  citizens.  Neutral 
arbitrators  have  generally  been  agreed  in  requiring  the  sovereign 
which  claimed  an  individual  as  a  national  to  adhere  to  a  position 
consistent  with  its  own  municipal  laws  or  constitution.  Thus 
a  State  of  which  the  law,  based  upon  the  jus  sanguinis,  does 
not  provide  for  the  acquisition  of  nationality  by  birth  of  a  child 
born  within  its  territory  to  foreign  parents  domiciled  abroad, 
is  not  permitted  to  deny  the  right  of  the  State  of  the  parents' 
nationality  to  claim  (if  it  may  do  so  consistently  with  its  own 
laws)  that  the  child  at  birth  became  one  of  its  nationals.^  In 
case  of  a  conflict  of  laws,  the  opinion  seems  to  have  prevailed  that 
the  law  of  the  State  in  which  the  individual  resided  when  the  claim 
arose  should  govern  the  question  of  his  allegiance  in  so  far  as  it 
was  derived  from  or  dependent  upon  the  fact  of  his  nationality 
by  birth.2    It  is  to  be  observed,  however,  that  the  cases  involving 

1  Case  of  Joseph  O.  Wilson,  No.  121,  Spanish-American  Commission,  under 
agreement  of  Feb.  11-12,  1871,  Moore,  Arbitrations,  III,  2454;  Case  of  Heirs 
of  H.  S.  Shreckt;.  Mexico,  No.  768,  Mexican-American  Commission,  Convention 
of  July  4,  1868,  id.,  2450;  Claim  of  Maria  Adelaide  Morton,  included  in  J.  M. 
Ancira,  attorney  for  numerous  claimants  v.  Mexico,  No.  374,  before  same  Com- 
mission, id.,  2453;  Stevenson's  Case,  respecting  certain  children  born  in 
Trinidad,  British-Venezuelan  Commission,  1903,  Ralston's  Report,  438,  454. 

In  the  Corvaia  Case,  before  the  Italian-Venezuelan  Commission,  1903. 
it  was  held  by  Ralston,  umpire,  that  the  original  claimant,  born  a  subject  of 
the  Two  Sicilies,  and  who  had  lost  his  citizenship  according  to  the  code  of  that 
country  by  accepting  diplomatic  employment  from  Venezuela,  and  who  had 
never  regained  such  citizenship,  had  taken  steps  which  made  it  inequitable 
for  the  Italian  Government  subsequently  to  claim  him  as  a  subject  as  against 
Venezuela.     Id.,  782,  808. 

2  Cases  of  L.  Lavigne  and  F.  Bister,  Spanish-American  Commission,  under 
agreement  of  Feb.  11-12,  1871,  Moore,  Arbitrations,  III,  2454;  also  Plumley, 
umpire,  in  Mathison's  case,  British-Venezuelan  Commission,  1903,  Ralston's 
Report,  429,  433-438. 

See  award  of  May  3,  1912,  in  the  Canevaro  Case  between  Italy  and  Peru, 
before  the  Permanent  Coiu-t  at  the  Hague,  respecting  the  claim  of  Raphael 
Canevaro. 

620 


ACQUISITION  OF  NATIONALITY  BY  REVOLUTION     [§  349 

a  conflict  usually  raise  a  question  respecting  the  effect  of  certain 
acts  or  events  alleged  to  have  changed  the  nationality  of  the 
individual,  rather  than  an  issue  concerning  his  nationality  by 
birth.i 

3 

§  349.   Acquisition  of  Nationality  by  Revolution. 

When  a  colony  by  process  of  revolution  wins  independence  and 
becomes  a  State,  the  persons  formerly  nationals  of  the  parent 
State  who  adhere  to  the  new  one  and  continue  to  reside  within  its 
territory  may  be  regarded  as  becoming  automatically  the  nationals 
of  the  latter.  Thus,  as  a  consequence  of  the  American  Revolu- 
tion, persons  formerly  of  British  nationality,  who  adhered  to 
the  cause  of  the  revolutionists  and  resided  in  the  territory  which 
they  controlled,  acquired  American  nationality  when  the  United 
States  came  into  being.^  A  privilege  of  election  was,  however, 
accorded.  British  subjects  withdrawing  from  the  United  States 
and  so  manifesting  their  adherence  to  the  British  Crown,  were 
regarded  as  never  acquiring  American  citizenship.  The  Supreme 
Court  of  the  United  States  was  of  opinion  that  the  change 
of  nationality  wrought  by  the  Revolution  was  effected  on  or 
about  July  4,  1776;  and  it  tested  generally,  by  reference  to 
that  date,  the  timeliness  of  acts  indicative  of  an  election  to  re- 
tain British  nationality.^     In  England  the  courts  were  of  opinion 

1  Cases  of  Narcisa  de  Hammer  and  Amelia  de  Brissot,  American- Venezuelan 
Commission,  convention  of  Dec.  5,  1885,  Moore,  Arbitrations,  2456,  2461 ; 
Plumley,  umpire,  in  Stevenson's  Case,  British-Venezuelan  Commission,  1903, 
Ralston's  Report,  438,  442-452;  Ralston,  umpire,  in  Brignone  Case,  Italian- 
Venezuelan  Commission,  1903,  id.,  710,  715;  same  umpire  in  Miliani  case, 
before  same  Commission,  id.,  754,  759-760;  same  umpire  in  Poggioli  case,  be- 
fore same  Commission,  id.,  847,  866. 

-  Mcllvaine  v.  Coxe's  Lessee,  4  Cranch,  209 ;  Inglis  v.  Sailor's  Snug  Harbour, 
3  Pet.  99 ;  Mr.  Gallatin  to  Mr.  Lowrie,  Feb.  19,  1824,  2  Gallatin's  Writings, 
287,  Moore,  Dig.,  Ill,  294. 

"All  white  persons,  or  persons  of  European  descent,  who  were  born  in  any 
of  the  colonies,  or  resided  or  had  been  adopted  there,  before  1776,  and  had 
adhered  to  the  cause  of  independence  up  to  July  4,  1776,  were,  by  the  Declara- 
tion, invested  with  the  privileges  of  citizenship."  Van  Dyne,  Naturalization, 
272. 

3  Thompson,  J.,  in  Inglis  v.  Sailor's  Snug  Harbour,  3  Pet,  99,  120-126.  The 
learned  Justice  who  delivered  the  opinion  of  the  Court  said  in  part :  "Prima 
facie,  and  as  a  general  rule,  the  character  in  which  the  American  ante-nati  are 
to  be  considered,  will  depend  upon,  and  be  determined  by,  the  situation  of  the 
party,  and  the  election  made,  at  the  date  of  the  Declaration  of  Independence 
according  to  our  rule ;  or  the  treaty  of  peace,  according  to  the  British  rule. 
But  this  general  rule  must  necessarily  be  controlled  by  special  circumstances 
attending  particular  cases.  And  if  the  right  of  election  be  at  all  admitted, 
it  must  be  determined,  in  most  cases,  by  what  took  place  during  the  struggle, 
and  between  the  Declaration  of  Independence  and  the  treaty  of  peace.  To  say 
that  the  election  must  have  been  before,  or  immediately  at  the  declaration  of 
independence,  would  render  the  right  nugatory." 

621 


§  349]  NATIONALITY 

that  the  change  of  nationality  took  effect  with  the  operation  of 
the  treaty  of  peace  concluded  September  3,  1783.^ 

Nationality  which  results  from  revolution  is  a  natural  conse- 
quence of  the  change  of  sovereignty  brought  about  by  the  occu- 
pants of  the  territory  of  the  new  State.  No  affirmative  acts  are 
required  of  such  individuals.  Their  duty  of  allegiance  to  the  new 
sovereign  arises  from  the  circumstance  that  it,  as  the  successor  of 
the  parent  State,  may  reasonably  claim  as  nationals  all  who  pre- 
viously owed  allegiance  to  that  State,  at  least  while  they  remain 
residents  of  the  territory  of  v/hich  the  sovereignty  has  undergone 
a  change.  The  situation  does  not  resemble  that  where  an  indi- 
vidual attempts  through  his  own  acts  to  expatriate  himself, 
and  simultaneously  to  acquire  through  naturalization  the  benefits 
of  the  nationality  of  a  foreign  State. 

4 

Naturalization 

a 

§  350.   Definition.     Regulation. 

Naturalization  is  the  process  by  which  a  State  adopts  a  foreigner 
and  stamps  upon  him  the  impress  of  its  own  nationality.^  The 
reasonableness  of  such  action  depends  upon  whether,  in  the  par- 
ticular case,  circumstances  have  so  combined  as  to  warrant  the 
claim  that  a  relationship  has  been  established  between  the  natural- 
izing State  and  the  individual  such  that  there  is  due  from  him  to 
it  an  obligation  of  allegiance  superior  to  and  inconsistent  with  any 
previously  due  to  any  other  sovereign. 

Whether  naturalization  serves  also  to  confer  rights  of  citizen- 
ship depends  solely  upon  the  will  of  the  State  whose  nationality 

^  Doe  V.  Acklam,  2  Barn.  &  Cresw.  779.  With  reference  to  the  treaty  of 
peace,  the  text  of  which  is  contained  in  Malloy's  Treaties,  I,  586,  see,  also, 
Story,  J.,  in  Shanks  v.  Dupont,  3  Pet.  242,  247,  248,  Moore,  Dig.,  Ill,  292-293. 

Also  Art.  II  of  the  Jay  Treaty  of  Nov.  19,  1794,  Malloy's  Treaties,  I,  591, 
concerning  the  right  of  British  settlers  and  traders  within  the  precincts  of 
military  posts  within  the  boundaries  of  the  United  States  and  occupied  by 
British  forces,  to  retain  British  nationality  after  the  removal  of  said  forces, 
and  the  opinion  of  Mr.  Wirt,  Attv.-Gen.,  as  to  the  interpretation  of  the  t^eat}^ 
5  Ops.  Attys.-Gen.,  716,  Appendix,  Moore,  Dig.,  Ill,  293-294. 

2  "Naturalization  is  the  act  of  adopting  a  foreigner,  and  clothing  him  with 
the  privileges  of  a  native  citizen."  Fuller,  C.  J.,  in  Boyd  v.  Thayer,  143  U.  S. 
135,  162. 

See,  also.  Report  on  Citizenship  of  the  United  States,  by  J.  B.  Scott,  D.  J. 
Hill  and  G.  Hunt,  House  Doc.  No.  326,  59  Cong.,  2  Sess. ;  Frederick  Van 
Dyne,  Law  of  Naturalization  of  the  United  States,  Washington,  1907 ;  Dana's 
Wheaton,  Dana's  Note  No.  49. 

622 


VOLUNTARY    INDIVIDUAL   ACTION  [§  351 

is  acquired.^  That  State  is  free  to  determine  according  to  its  dis- 
cretion what  classes  or  races  of  aliens  it  will  accept  as  nationals 
and  the  conditions  on  which  they  may  become  such.  It  may  be 
noted  that  until  the  beginning  of  the  twentieth  century  the  statu- 
tory law  of  the  United  States  offered  abundant  opportunity  for 
fraud  on  the  part  of  aliens  seeking  to  acquire  American  citizenship.^ 


§  351.   Voluntary  Individual  Action. 

The  United  States  has  always  maintained  that  a  transfer  of 
allegiance,  save  where  it  is  brought  about  collectively  through  the 
operation  of  a  change  of  sovereignty  over  territory,  must  be  a 
distinctively  voluntary  act,  and  that  loss  of  nationality  should 
not  be  imposed  as  a  penalty,  nor  a  new  national  status  forced 
as  a  favor  by  one  government  upon  a  citizen  of  another.^  A 
transfer  of  allegiance  is  deemed  to  possess  an  involuntary  aspect 
when,  without  the  knowledge  or  consent  of  the  individual,  it  is 
made  the  legal  consequence  of  his  purchase  of  land,^  or  of  his 

1  This  is  true  when  naturaUzation  takes  place  in  the  United  States  by  virtue 
of  Sec.  1  of  the  Fourteenth  Amendment  to  the  Constitution,  which  provides 
that  "all  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside." 

2  President  Grant,  Annual  Message,  Dec.  5,  1876,  For.  Rel.  1876,  ix,  Moore, 
Dig.,  Ill,  298;  President  Arthur,  Annual  Message,  Dec.  1,  1884,  For.  Rel. 
1884,  X,  Moore,  Dig.,  Ill,  299;  President  Cleveland,  Annual  Me.s.sage,  Dec.  3, 
1888,  For.  Rel.  1888,  I,  xvii-xviii,  Moore,  Dig.,  Ill,  300;  President  Roosevelt, 
Annual  Message,  Dec.  6,  1904,  For.  Rel.  1904,  xxxii-xxxiv;  opinion  of  Mr. 
Ju.stice  Brandeis,  in  United  States  v.  Ness,  245  U.  S.  319,  324. 

But  see  §  15  of  the  Act  of  Congre.ss  of  June  15,  1906,  respecting  fraudulent 
naturalization,  and  the  Diplomatic  Instructions  and  Consular  Regulations 
based  thereon,  April  19,  1907,  For.  Rel.  1907,  I,  8-9. 

'  The  language  in  the  text  (save  for  the  proviso)  is  substantially  that  of 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Manning,  Minister  to  Mexico,  Nov.  20, 
1886,  For.  Rel.  1886,  723,  Moore,  Dig.,  Ill,  305-306.  See,  also.  Same  to  Same, 
April  27,  1887,  For.  Rel.  1887,  717,  Moore,  Dig.,  Ill,  307;  Mr.  Fish,  Secv.  of 
State,  to  Mr.  Russell,  Minister  to  Venezuela,  Feb.  22,  1875,  MS.  Inst.  Vene- 
zuela, II,  283,  Moore,  Dig.,  Ill,  303. 

It  may  be  observed  that  through  the  operation  of  the  treaty  between  the 
United  States  and  Spain  of  Dec.  10,  1898,  the  natives  of  the  Philippine 
Islands  and  Porto  Rico  were  collectively  naturalized,  and  left  without  means 
of  retaining  their  Spanish  nationality  while  they  remained  in  those  islands. 

*  See  cases  relative  to  the  ownership  of  land  in  Mexico,  before  Mexican- 
American  Commission,  Convention  of  Julv  4,  1868,  Moore,  Arbitrations, 
2468-2483,  especially  Case  of  Fayette  Anderson  and  Wm.  Thomp.son,  No.  333, 
id.,  2479,  and  2481.  Mr.  Bayard,  Secy,  of  State,  in  a  communication,  to  Mr. 
Manning,  Minister  to  Mexico,  April  27,  1887,  expressed  "dissent  from  the 
position  that  foreigners  who  have  purchased  land  or  had  children  born  to  them 
in  Mexico  may,  from  time  to  time,  by  a  municipal  statute,  be  deprived  of 
their  nationality  unless  they  take  some  affirmative  step  to  preserve  it."  For. 
Rel.  1887,  717,  Moore,  Dig.,  Ill,  307. 

Compare  Mr.  Olney,  Secy,  of  State,  to  Mr.  Ransom,  Minister  to  Mexico, 

623 


§  351]  NATIONALITY 

residence  within  the  territory  of  a  State.^  No  objection  is,  how- 
ever, apparent  when  the  granting  of  land  to  an  alien  is  made  con- 
tingent upon  his  accepting  the  nationality  of  the  grantor.  In 
such  case  the  transaction  is  regarded  as  u  voluntary  arrangement.^ 
While  the  Department  of  State  has  been  unwilling  to  admit  the 
principle  that  a  foreign  government  may  denationalize  domi- 
ciled aliens  who  fail,  within  a  specified  time,  to  declare  an  inten- 
tion to  retain  their  nationality,  it  has,  under  certain  circumstances, 
acquiesced  in  the  practice,  by  advising  American  residents  to 
make  the  desired  declaration  before  an  American  diplomatic 
or  consular  representative.^ 


§  352,    Collective  Naturalization. 

Whenever  a  State  acquires  territory  from  another,  the  inhabit- 
ants of  the  area  transferred,  who  were  nationals  of  the  former 
territorial  sovereign,  are  collectively  naturalized.  They  are  at 
once  subjected  to  a  duty  of  allegiance  to  the  transferee.'*  The 
process  by  which  the  change  of  sovereignty  is  brought  about 
seems  to  be  immaterial.^     If  it  is  effected  by  a  treaty  of  cession,  the 

Dec.  13,  1895,  For.  Rel.  1895,  II,  1008,  Moore,  Dig.,  Ill,  307,  respecting  the 
refusal  of  Mexico  to  extradite  one  Chester  W.  Rowe,  a  fugitive  from  the  justice 
of  the  United  States. 

1  Mr.  Webster,  Secy,  of  State,  to  Mr.  Sharkey,  Consul  at  Havana,  July  5, 
1852,  Moore,  Arbitrations,  2701,  2703,  in  which  it  was  declared  :  "Change  of 
domicil  is  matter  of  intention,  and,  notwithstanding  residence  in  fact,  there 
must  be  the  animus  manendi.  Change  of  allegiance,  which  is  manifested 
by  the  voluntary  action,  and  usually  by  the  oath  of  the  party  himself,  ought 
always  to  be  accomplished  by  proceedings  which  are  understood  on  all  sides 
to  have  that  effect.  It  is  certainly  just  that  acts  which  are  to  be  regarded  as 
changing  the  allegiance  of  American  citizens,  should  be  distinctly  understood 
by  those  to  whom  they  are  applied,  as  having  that  effect ;  that  the  practical 
as  well  as  the  theoretical  construction  of  such  acts  should  be  unequivocal 
and  uniform,  and  that  no  acts  should  be  deemed  acts  of  expatriation,  except 
such  as  are  openly  avowed  and  fully  understood." 

2  Mr.  Hav.  Secy,  of  State,  to  Mr.  Powell,  Minister  to  Haiti,  Dec.  1,  1899, 
For.  Rel.  1899,  403,  Moore,  Dig.,  III.  310. 

^  See  abstracts  o\  documents  in  Moore,  Dig.,  Ill,  307-310,  concerning  a 
discussion  with  Bmzil  in  1890. 

*  American  Insurance  Co.  v.  Canter,  1  Pet.  511,  542 ;  Fuller,  C.  J.,  in  Bovd 
V.  Thayer,  143  U.  S.  135,  162 ;  Tobin  v.  Walkinshaw,  McAllister,  186,  Moore, 
Dig.,  Ill,  312 ;  Case  of  Egle  Aubrey,  American-French  Commission,  Conven- 
tion of  Jan.  15,  1880,  Moore,  Arbitrations,  III,  2511.  See,  also,  Van  Dyne, 
Naturahzation,  266-332  ;   Oppenheim,  2  ed..  I,  §  301. 

^  "It  is  a  universally  recognised  customary  rule  of  the  Law  of  Nations  that 
the  inhabitants  of  subjugated  as  well  as  ceded  territory  lose  their  nationality 
and  acquire  that  of  the  State  which  annexes  the  territory."  Oppenheim, 
2  ed.,  I,  §  302.     See,  also.  Hall,  6  ed.,  566. 

As  a  consequence  of  the  subjugation  by  Italy  in  1911  of  Tripoli  and  Cyre- 
naica,  the  native  population  acquired  Italian  nationality.  See  royal  decree 
of  Nov.  5,  1911,  annexing  Tripoli  and  Cyrenaica,  wliich  contained  no  reference 

624 


COLLECTIVE    NATURALIZATION  [§  352 

agreement  commonly  makes  provision  that  nationals  of  the 
former  sovereign,  residing  within  the  territory  and  who  so  elect, 
may  retain  their  allegiance  to  it  by  taking  certain  specified  steps 
appropriate  to  that  end.^ 

The  treaty  may  declare  that  persons  whose  nationality  is  to  be 
changed  may  become  citizens  as  well  as  nationals  of  the  new 
sovereign.^  In  the  absence  of  agreement  the  change  of  allegiance 
resulting  from  the  change  of  sovereignty  does  not  serve  also  to 
confer  rights  of  citizenship.     The  acquisition  of  them  depends 

to  the  change  of  nationaUty,  Arch.  Dip.,  3  ser.,  52d  year,  torn.  121,  p.  181. 
The  same  document  is  contained  in  Nouv.  Rec.  Gen.,  3  ser.,  VI,  4.  See,  also, 
treaty  of  peace  between  Italy  and  Turkey,  Oct.  18,  1912,  Arch.  Dip.,  3  ser., 
53d  year,  torn.  125,  p.  16.  The  same  document  is  contained  in  Nouv.  Rec. 
Gen.,  3  ser.,  VII,  7.  In  this  connection  see  "Die  Envcrbung  Tripolilaniens 
durch  Italien  und  deren  volkerrechtlicher  Charakter",  by  Dr.  G.  Diena,  ZeiL 
Int.  Recht,  XXIII,  Part  I,  1. 

If  by  occupation  a  State  asserts  dominion  over  a  region  not  deemed  to  be- 
long to  any  civilized  State  or  to  any  country  or  political  entity  regarded  as 
capable  of  possessing  title,  as  in  the  case  of  a  land  inhabited  solely  by  un- 
civilized people,  the  impressing  of  the  nationality  of  the  occupant  upon  the 
native  inhabitants  is  the  natural  consequence  of  the  creation  of  a  right  of  prop- 
erty and  control  over  the  territory  on  which  they  dwell.  Such  persons  might, 
therefore,  be  regarded  as  possessed  of  no  nationality  until  subjected  to  the 
allegiance  of  the  occupying  State. 

1  See,  for  example.  Art.  VIII,  Treaty  of  Guadalupe-Hidalgo,  Feb.  2,  1848, 
Malloy's  Treaties,  I,  1111,  and  documents  respecting  its  operation  in  Moore, 
Dig.,  Ill,  319;  also  cases  in  Moore,  Arbitrations,  III,  2509-2511;  Art.  Ill, 
convention  with  Russia,  March  30,  1867,  ceding  Alaska  to  the  United  States, 
Malloy's  Treaties,  II,  1523,  also  documents  respecting  its  operation  in  Moore, 
Dig.,  Ill,  320;  Art.  IX  of  the  treaty  of  peace  between  the  United  States  and 
Spain,  Dec.  10.  1898,  Malloy's  Treaties,  II,  1693,  and  documents  concerning 
its  operation  in  Moore,  Dig.,  Ill,  321-327;  also  Bosque  v.  United  States,  209 
U.  S.  91,  where  the  removal  of  a  Spanish  resident  from  the  Philippine  Islands 
in  1899,  and  his  absence  therefrom  until  18  months  after  the  ratification  of  the 
treaty  of  peace,  caused  him  to  remain  a  Spaniard,  in  spite  of  no  declaration 
of  intention  to  preserve  allegiance  to  Spain.  See  Martinez  v.  Asociacion  de 
Senoras,  213  U.  S.  20,  with  reference  to  a  Spanish  corporation  organized  for 
purely  local  and  charitable  purposes  in  Porto  Rico,  in  which  the  court  de- 
clared: "We  are  of  opinion  that  the  cession  of  Porto  Rico  by  Spain  to  the 
United  States  severed  all  relations  between  Spain  and  this  corporation,  and 
that  thereafter  it  cannot  be  regarded  in  any  sense  as  a  citizen  or  subject  of 
Spain.  Spain  has  no  duty  to  or  power  over  it.  We  confine  this  statement  to 
a  corporation  like  the  one  before  us,  formed  for  charitable  purposes  and  limited 
in  its  operations  to  the  ceded  territory.  A  different  question  (which  need  not 
be  decided)  would  be  presented  if  the  corporation  had  other  characteristics 
than  those  possessed  by  the  one  under  consideration,  as,  for  instance,  if  it  vvere 
a  Spanish  trading  corporation,  with  a  place  of  business  in  Spain  but  doing 
business  by  comity  in  the  island  of  Porto  Rico." 

2  "Every  treaty  of  cession  to  which  the  United  States  has  been  a  party, 
with  the  exception  of  the  treaty  of  peace  of  1898  (30  Stat.  L.  1754),  with  Spain, 
ceding  Porto  Rico  and  the  Philippine  Islands  to  the  United  States,  contains 
a  stipulation  providing  that  the  inhabitants  of  the  territory  ceded  may,  in 
whole  or  in  part,  become  citizens  of  the  United  States,  either  immediately 
or  under  certain  conditions.  The  treaty  with  Russia  for  the  cession  of  Alaska 
(15  Stat,  at  L.  542)  excepted  'uncivilized  native  tribes'  from  the  privilege  of 
admission  to  citizenship."     Van  Dyne,  Naturalization,  275-276. 

See,  also.  Art.  VI  of  the  treatv  between  the  United  States  and  Denmark 
of  Aug.  4,  1916,  U.  S.  Treaty  Series,  No.  629,  Am.  J.,  XI,  Supp.,  53,  57. 

625 


§  352]  NATIONATJTY 

upon  the  will  of  the  new  sovereign.     No  principle  of  international 
law  is  involved. 

The  principle  of  collective  naturalization  was  necessarily  ap- 
plied in  the  German  treaty  of  peace  of  June  28,  1919.  Thus, 
for  example,  it  was  declared  that  German  nationals  habitually 
resident  in  any  of  the  territories  recognized  as  forming  part  of  the 
Czecho-Slovak  State  would  obtain  Czecho-Slovak  nationality 
ipso  facto  and  lose  their  German  nationality.^  Careful  provision 
was  made,  however,  for  the  exercise  of  the  right  to  opt  for  German 
nationality  by  German  nationals  so  habitually  resident,  under 
conditions  specified.^ 


American  Naturalization 

(1) 
§  353.    Regulated  by  Congress.     Entrusted  to  the  Courts. 

By  the  Fourteenth  Amendment^  to  the  Constitution,  one  who 
is  naturalized  in  the  United  States  and  subjected  to  the  juris- 
diction thereof  becomes  a  citizen  as  well  as  a  national  thereof. 

The  power  to  enact  naturalization  laws  is  lodged  exclusively  in 
Congress.^     Upon  compliance  with  the  regulations  which  it  has 

1  Art.  84.     See,  also,  Art.  91,  with  respect  to  Poland. 

2  Art.  85,  where  it  was  provided  that  persons  who  should  exercise  the  right 
to  opt  should  within  a  specified  time  be  obliged  to  transfer  their  place  of 
residence  to  the  State  for  which  they  had  opted. 

3  Section  1 ;  Behrensmeyer  v.  Kreitz,  135  Ills.  591. 

*  Art.  1,  Sec.  8  of  the  Constitution  declares  that  the  Congress  shall  have 
power  "to  establish  an  uniform  rule  of  naturalization."  See  United  States  v. 
Villato,  2  Dall.  370;  Chirac  v.  Chirac,  2  Wheat.  259.  Compare  Collet  v. 
Collet,  2  Dall.  294.  Also  Van  Dyne,  Naturalization,  6-9;  Moore,  Dig.,  Ill, 
327-328,  and  documents  there  cited,  including  a  list  of  statutes  of  the  United 
States  relating  to  citizenship  and  naturalization  from  1790  to  1894 

Bureau  of  Naturalization.  The  Act  of  June  29,1906,  Chap.  3592,  §  1,  34 
Stat.  596,  established  a  so-called  Bureau  of  Immigration  and  Naturalization 
under  the  direction  of  the  Secretary  of  Commerce  and  Labor.  To  this  Bureau 
was  given  charge  of  "all  matters  concerning  the  naturalization  of  aliens." 
It  was  made  the  duty  of  the  Bureau  among  other  things  to  cause  the  registra- 
tion of  every  alien  arriving  in  the  United  States,  and  also  to  issue  to  him  a 
certificate  of  such  registration.  In  order  to  prevent  the  perpetration  of  fraud 
upon  the  citizenship  of  the  United  States,  later  sections  of  the  Act  made  pro 
vision  for  cooperation  between  courts  exercising  jurisdiction  in  naturalization 
proceedings  and  the  Bureau,  in  connection  with  both  the  granting  and  can- 
celing of  naturalization.  The  purpose  was  to  establish  an  organ  of  the  Gov- 
ernment which  should  be  possessed  of  complete  information  with  respect  to 
all  naturalization  cases  arising  in  the  United  States,  and  which  should  exercise 
important  administrative  functions  greatly  needed  as  an  additional  safe- 
guard to  supplement  the  judicial  functions  intrusted  to  the  courts. 

By  an  Act  of  March  4,  1913,  Chap.  141,  §  3,  37  Stat.  737,  U.  S.  Comp.  Stat. 
1918,  §§  961  and  962,  the  Bureau  of  Naturalization  was  established  under 
the  direction  of  the  Secretary  of  Labor.     A  Commissioner  of  Naturalization 

626 


PERSONS  CAPABLE  OF  NATURALIZATION         [§  354 

adopted,  aliens  are  admitted  to  citizenship  without  regard  to  any 
claims  upon  them  asserted  by  the  State  of  their  origin.^ 

Naturalization  in  the  United  States  is  normally  effected  through 
the  operation  of  a  judicial  act  which  must  be  performed  by  a 
court.^  The  executive  branch  of  the  Government  cannot  pre- 
scribe the  action  of  any  tribunal  on  a  given  application.^  It  should 
be  observed  that  naturalization  may  be,  and  at  times  has  been, 
effected  by  special  Act  of  Congress. 

(2) 

§  354.   Persons   Capable    of   Naturalization   as   American 

Citizens. 

Under  the  existing  law,  the  provisions  for  naturalization  are 

declared  to  "apply  to  aliens  being  free  white  persons,  and  to 

aliens  of  African  nativity,  and  to  persons  of  African  descent."  ^ 

was  declared  to  be  the  administrative  officer  in  charge  of  the  Bureau  "and  of 
the  administration  of  the  naturaUzation  laws  under  the  immediate  direction 
of  the  Secretary  of  Labor." 

1  Mr.  Hav,  Secy,  of  State,  to  Mr.  Harris,  Minister  to  Austria-Hungary, 
May  10,  1900,  For.  Rel.  1900,  30,  31,  Moore,  Dig.,  Ill,  328. 

-  The  statement  in  the  text  is  substantially  that  of  Professor  Moore,  m 
Dig.,  Ill,  328.     See,  also,  Marshall,  C.  J.,  in  Spratt  i\  Spratt,  4  Pet.  393. 

Inasmuch  as  the  act  to  be  performed  by  the  court  involves  a  decision  based 
upon  the  examination  of  witnesses  as  to  whether  the  petitioner  satisfies  the 
requirements  of  the  law,  that  act  may  be  fairly  described  as  a  judicial  one. 
While  the  court  does  not  decide  that  the  petitioner  is  or  is  not  a  citizen,  it  does 
decide  whether  the  evidence  suffices  to  justify  the  admission  of  the  petitioner 
to  citizenship. 

That  American  diplomatic  and  consular  officers  in  countries  where  they  ex- 
ercise judicial  functions  by  law  and  treaty,  are  without  authority  to  naturalize 
aliens,  see  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Terrell,  Minister  to  Turkey, 
Nov.  2,  1893,  For.  Rel.  1893,"701,  Moore,  Dig.,  Ill,  329. 

Courts  Authorized  to  Naturalize.  According  to  the  Act  of  June  29, 
1906,  §  3,  34  Stat.  596  :  "Exclusive  jurisdiction  to  naturalize  aliens  as  citizens 
of  the  United  States  is  hereby  conferred  upon  the  following  specified  courts : 
United  States  circuit  and  district  courts  now  existing,  or  which  may  here- 
after be  established  by  Congress  in  any  State,  United  States  district  courts  for 
the  Territories  of  Arizona,  New  Mexico,  Oklahoma,  Hawaii,  and  Alaska,  the 
Supreme  Court  of  the  District  of  Columbia,  and  the  L^nited  States  courts  for 
the  Indian  Territory ;  also  all  courts  of  record  in  any  State  or  Territory  now 
existing,  or  which  may  hereafter  be  created,  having  a  seal,  a  clerk,  and  juris- 
diction in  actions  at  law  or  equity,  or  law  and  equity,  in  which  the  amount  in 
controversy  is  unlimited." 

3  The  language  of  the  text  is  that  of  Mr.  Bayard,  Secy,  of  State,  in  a  com- 
munication to  Mr.  Stuart,  Sept.  9,  1885,  157  MS.  Dom.  Let.  93,  Moore,  Dig., 
III.  328. 

Concerning  the  Functions  of  Judges  under  the  Act  of  June  29,  1906, 
and  that  of  March  2,  1907,  see  Van  Dvne,  Naturalization,  19-22.  Concerning 
the  Duties  of  Clerk.-^  of  Courts  under  the  Act  of  June  29,  1906,  id.,  22-34  ;  and 
concerning  the  Duties  of  United  States  District  Attorneys  under  the  same 
Act  id.   34—36. 

^Rev.  Stat.' §  2169,  amended,  Feb.  18,  1875,  Chap.  80,  §  1,  18  Stat.  318, 
U.  S.  Comp.  Stat.  1918,  §  4358. 

"By  the  Acts  of  1802  and  1824,  only  'free  white  persons'  were  capable  of 

627 


§  354]  NATIONALITY 

"Chinese,  since  they  are  neither  of  the  'white'  (Caucasian),  nor 
of  the  African,  race,  are  not  within  the  general  statutes  relating 
to  naturalization."  ^  An  Act  of  Congress  of  May  6, 1882,  provided 
that  thereafter  no  court  should  admit  Chinese  to  citizenship.^ 
Hence  it  was  subsequently  held  that  a  certificate  of  naturaliza- 
tion issued  to  a  Chinaman  is  void.^ 

Judicial  opinion  in  the  United  States  has  lacked  uniformity  re- 
specting what  individuals  are  to  be  regarded  as  "  free  white  persons" 
within  the  meaning  of  the  Act  of  Congress.  It  has  been  held  that 
Syrians,  Armenians,  Parsees  and  high  caste  Hindus  were  eligible 
for  naturalization.^     Japanese  have  been  deemed  to  be  ineligible.^ 

It  must  be  clear  that  the  conditions  on  which  persons  who  are 
nationals  of  the  United  States  and  owing  allegiance  to  it,  but  who 
are  not  citizens  thereof,  may  be  admitted  to  citizenship  are  matters 
solely  of  domestic  concern.  In  the  absence  of  restrictions  im- 
posed by  treaty  they  possess  no  international  significance.^ 

naturalization.  By  the  Act  of  1870,  the  benefits  of  the  law  were  extended  to 
'aliens  of  African  nativity  and  to  persons  of  African  descent.'  The  law,  as 
consolidated  in  the  Revised  Statutes,  thus  stands,  embracing  only  'white 
persons'  and  persons  of  ,\frican  descent."  Statement  in  Moore,  Dig.,  Ill,  329. 
See,  also.  Van  Dyne,  Naturalization,  40-42. 

1  Moore,  Dig.,  Ill,  330,  citing  In  re  Ah  Yup,  5  Sawyer  C.  C.  155,  followed  in 
Mr.  Evarts,  Secy,  of  State,  to  Mr.  Holcombe,  No.  250,  Oct.  29,  1878,  MS. 
Inst.  China,  II,  574 ;  State  v.  Ah  Chew,  16  Nev.  50,  61 ;  Mr.  Ohiey,  Secy,  of 
State,  to  Mr.  Ritter,  Sept.  20,  1895.  205  MS.  Dom.  Let.  8. 

2  Chap.  126,  §  14,  22  Stat.  61,  U.  S.  Comp.  Stat.  1918,  §  4359.  Relative 
to  this  Act  and  its  relation  to  Art.  V  of  the  treaty  with  China  of  July  28,  1868, 
see  documents  cited  in  Moore,  Dig.,  Ill,  330. 

3  In  re  Gee  Hop,  71  Fed.  274 ;  In  re  Hong  Yen  Chang,  84  Cal.  163 ;  Opin- 
ion of  Mr.  McKenna,  Atty.-Gen.,  21  Ops.  Attys.-Gen.,  581. 

■»  In  re  Najour  (a  Svrian),  174  Fed.  735;  In  re  Halladjian  (an  Armenian), 
174  Fed.  834  ;  In  re  Mudarri  (a  Syrian),  176  Fed.  465  ;  In  re  Ellis  (a  Syrian), 
179  Fed.  1002;  United  States  v.  Balsara  (a  Parsee),  180  Fed.  694;  In  re 
Akhay  Kumar  Mozumbar  (a  high  caste  Hindu),  207  Fed.  115  ;  Dow  v.  United 
States,  226  Fed.  145  (a  Syrian),  reversing  213  Fed.  355.  where  Henry  A.  M. 
Smith,  J.,  in  the  course  of  an  exhaustive  opinion,  held  that  a  SjTian  "not  be- 
ing of  European  nativity  or  descent",  was  outside  of  the  scope  of  the  statute ; 
In  re  Mohan  Singh  (a  Hindu),  257  Fed.  209.  Contra,  In  re  Sadar  Bhagwab 
Singh,  246  Fed.  496.     Also  In  re  Bhagat  Singh  Hind,  268  Fed.  683. 

8  In  re  Saito,  62  Fed.  126,  and  criticism  thereof  in  Am.  L.  Rev.,  XXVIII, 
818,  cited  in  Moore,  Dig.,  Ill,  331  ;  In  re  Yamashita,  30  Wash.  234;  also  In 
re  Buntaro  Kumagai,  163  Fed.  922 ;   Bessho  v.  United  States,  178  Fed.  245. 

That  a  native  citizen  of  Mexico  is  eligible  to  American  citizenship,  see  In 
re  Rodriguez,  81  Fed.  337  ;  also  discussion  of  this  case  in  Van  D\Tie,  Naturali- 
zation, 46-48. 

Deeming  individuals  regarded  as  half  white  persons  to  be  outside  of  the 
scope  of  the  statute,  see  In  re  Knight,  171  Fed.  299 ;  In  re  Young,  195  Fed. 
645;   s.  c,  198  Fed.  715. 

«  §  30,  Chap.  3592.  Act  of  June  29,  1906,  34  Stat.  606,  U.  S.  Comp.  Stat. 
1918,  §  4366.  See,  in  this  connection.  In  re  Alverto,  198  Fed.  688 ;  In  re 
Lampitoe,  232  Fed.  382 ;  In  re  Mallari,  239  Fed.  416 ;  In  re  RaUos,  241  Fed. 
686 ;   In  re  Bautista,  245  Fed.  765. 

Concerning  American  Indians,  see  EUc  v.  Wilkins,  112  U.  S.  94;  Boyd  v. 
Thayer,  143  U.  S.  135,  162. 

628 


PERSONS    INCAPABLE    OF  NATURALIZATION      [§  354 

Anarchists  and  polygamists  are  not  to  be  naturalized  or  made 
citizens  of  the  United  States.^  Subject  to  certain  limitations, 
persons  not  speaking  English  are  not  to  be  naturalized  or  admitted 
as  citizens."  The  Act  of  ]\Iay  9,  1918,  declared  that  no  alien  who 
was  a  native,  citizen,  subject  or  denizen  of  any  country,  State 
or  sovereignty  with  which  the  United  States  was  at  war  should  be 
permitted  to  become  a  citizen  thereof  unless  he  had  made  his 
declaration  of  intention  not  less  than  two  nor  more  than  seven 
years  prior  to  the  existence  of  the  state  of  war,  or  was  at  that  time 
entitled  to  become  a  citizen  of  the  United  States,  without 
making  a  declaration  of  intention,  or  unless  his  petition  for 
naturalization  should  then  be  pending  and  he  was  otherwise 
entitled  to  admission,  notwithstanding  he  was  an  alien  enemy 
at  the  time  and  in  the  manner  prescribed  by  the  laws  passed 
on  that  subject.  A  proviso,  however,  permitted  the  President 
at  his  discretion,  upon  specified  conditions  fully  establishing 
the  loyalty  of  an  alien  enemy  not  included  in  the  foregoing 
exemption,  to  exempt  him  from  the  classification  of  "alien  en- 
emy", enabling  him  thereby  to  have  the  privilege  of  applying  for 
naturalization.^ 

According  to  the  Act  of  August  31,  1918,  a  national  of  a  country 
which  was  neutral  in  the  then  existing  war,  who  had  declared 
his  intention  to  become  a  citizen  of  the  United  States  and  who, 
pursuant  to  the  statute,  was  relieved  from  liability  to  military 
service  by  making  a  declaration  withdrawing  his  intention  to  be- 
come such  a  citizen,  thereby  not  only  canceled  such  declaration, 


1  Chap.  3592,  §  7,  Act  of  June  29,  1906,  34  Stat.  598,  U.  S.  Comp.  Stat. 
1918,  §  4363. 

2  Act  of  June  29,  1906,  Chap.  3592,  §  8,  34  Stat.  599,  U.  S.  Comp.  Stat. 
1918,  §  4364.  It  was  declared  that  this  requirement  should  not  apply  to 
aliens  physically  unable  to  comply  with  it  if  they  were  otherwise  qualified  to 
become  citizens  of  the  United  States.  Nor  were  the  requirements  of  the 
section  to  apply  to  any  alien  who,  prior  to  the  passage  of  the  Act,  had  de- 
clared his  intention  to  become  a  citizen  of  the  United  States  in  conformity 
with  the  law  enforced  at  the  date  of  making  such  declaration.  Nor  were  those 
requirements  to  apply  to  aliens  who  should  thereafter  declare  their  intention 
to  become  citizens  and  who  should  make  homestead  entries  upon  the  lands  of 
the  United  States  and  comply  in  all  respects  with  the  laws  providing  for  home- 
stead entries  on  such  lands. 

3  Chap.  69,  §  1 1,  Act  of  May  9,  1918,  40  Stat.  545.  It  should  be  noted  that 
this  section  repealed  Rev.  Stat.,  section  2171.  See,  in  this  connection.  In  re 
Pfleiger,  254  Fed.  511 ;  In  re  Pollock,  257  Fed.  350. 

Concerning  the  operation  of  the  prior  statutory  law  under  §  2171,  Rev. 
Stat.,  see  United  States  v.  Mever,  241  Fed.  305;  "in  re  Jonasson.  241  Fed. 
723  ;  In  re  Kreuter,  241  Fed.  985  ;  In  re  Nannanga,  242  Fed.  737  ;  In  re  Haas, 
242  Fed.  739 ;  In  re  Naturalization  of  Subjects  of  Germanv,  242  Fed.  971 ; 
In  re  Duus,  245  Fed.  813 ;  United  States  v.  Kanan,  247  Fed.  968 ;  In  re  Weisz, 
250  Fed.  1008. 

629 


§  354]  NATIONAI.ITY 

but  also  rendered  himself  forever  debarred  from  becoming  a  citizen 
of  the  United  States.^ 

An  alien  woman  may  be  naturalized  under  the  laws  of  the 
United  States  in  the  same  manner  and  under  the  same  conditions 
that  pertain  to  the  naturalization  of  an  alien  man.^  It  is  not 
believed,  however,  that  a  married  woman  whose  husband  is  an 
alien  is  eligible  to  citizenship  during  the  continuance  of  the 
marriage  relationship.^  It  is  to  be  observed  that  under  the 
existing  law,  an  alien  woman,  capable  of  naturalization  and  who 
marries  an  American  citizen,  becomes  thereby  herself  such  a 
citizen.'* 

(3) 

§  355.    Usual  Legal  Conditions. 

The  usual  conditions  of  naturalization  in  the  United  States  are : 
first,  a  declaration  on  oath  of  an  intention  to  become  a  citizen ; 
secondly,  a  petition  for  admission  to  citizenship ;  thirdly,  a  dec- 
laration on  oath  to  support  the  Constitution  of  the  United  States 
and  to  renounce  former  allegiance  to  any  foreign  power ;  fourthly, 
proof  of  residence  for  a  required  period  of  time ;  fifthly,  proof  of 
good  behavior  and  attachment  to  the  principles  of  the  Constitu- 
tion during  such  period  of  residence ;  and  sixthly,  renunciation 
of  order  of  nobility  or  hereditary  title,  if  any.^     The  filing  of  a 

»  Chap.  166,  §  1,  40  Stat.  955. 

See,  also,  in  this  connection,  Neutral  Persons  and  Property  within  Belliger- 
ent Territory,  Military  Service,  Attitude  of  the  United  States,  infra,  §  626-627. 

2  The  statement  in  the  text  is  the  language  of  Mr.  Evarts,  Secy,  of  State, 
in  a  communication  to  Mr.  Hinton,  Oct.  19,  1877,  120  MS.  Dom.  Let.  232, 
Moore,  Dig.,  Ill,  331.  See,  also.  Minor  v.  Happersett,  21  Wall.  162.  It  was 
held  by  Wade,  J.,  in  1917,  that  a  petition  for  naturalization  filed  by  an  alien 
during  his  minority  is  void.     In  re  Cordaro,  246  Fed.  735. 

'  §  3  of  Act  of  March  2,  1907,  34  Stat.  1228,  declares  that  "any  American 
woman  who  marries  a  foreigner  shall  take  the  nationality  of  her  husband", 
and  it  provides  also  for  the  resumption  of  her  "American  citizenship  at  the 
termination  of  the  marital  relation."  The  inference  seems  clear  that  during 
the  continuance  of  that  relationship  and  while  her  husband  remains  an  alien, 
the  wife  is  incapacitated  from  acquiring  American  citizenship.  See,  also. 
Van  Dyne,  Nationality,  51-52,  citing  note  by  the  court  in  In  re  Langtry,  31 
Fed.  879,  880.     Comyare  Comitis  v.  Parkerson,  56  Fed.  556. 

4  Revised  Stat.  §  1994.  Sprung  v.  Morton,  182  Fed.  330 ;  In  re  Nicola, 
184  Fed.  322  ;   Marriage  of  Alien  Women  to  American  Citizens,  infra,  §  366. 

s  Act  of  June  29,  1906,  Chap.  3592,  34  Stat.  596. 

Petition  for  Naturalization.  The  Act  of  June  29,  1906,  par.  2,  §  4,  de- 
clares that  the  petition  for  naturalization  shall  be  not  less  than  two  nor  more 
than  seven  years  after  the  applicant  has  made  his  declaration  of  intention. 
Concerning  the  operation  of  this  requirement,  see  Eichhorst  v.  Lindsey,  209 
Fed.  708;  In  re  Yunghauss,  210  Fed.  545;  In  re  Goldstein.  211  Fed.  163; 
In  re  Yunghauss,  218  Fed.  168 ;   Harmon  v.  United  States,  223  Fed.  425. 

See,  especially,  United  States  v.  Morena,  245  U.  S.  392,  where  it  was  held 
that  the  requirement  of  the  Act  that  the  petition  for  citizenship  be  filed  not 

630 


EXCEPTIONS  [§  357 

certificate  of  arrival  is  also  deemed  to  be  an  essential  prerequisite 
to  a  valid  order  of  naturalization.^ 


(4) 
Declaration  of  Intention 

(a) 

§  356.   Requirements  of  the  Law. 

According  to  the  Act  of  June  29,  1906,  the  alien  seeking  admis- 
sion as  a  citizen  of  the  United  States 

shall  declare  on  oath  before  the  clerk  of  any  court  author- 
ized by  this  Act  to  naturalize  aliens,  or  his  authorized  deputy, 
in  the  district  in  which  such  alien  resides,  two  years  at  least 
prior  to  his  admission,  and  after  he  has  reached  the  age  of 
eighteen  years,  that  it  is  bona  fide  his  intention  to  become  a 
citizen  of  the  United  States,  and  to  renounce  forever  all  alle- 
giance and  fidelity  to  any  foreign  prince,  potentate,  State,  or 
sovereignty,  and  particularly,  by  name,  to  the  prince,  poten- 
tate. State,  or  sovereignty  of  which  the  alien  may  be  at  the 
time  a  citizen  or  subject.  And  such  declaration  shall  set  forth 
the  name,  age,  occupation,  personal  description,  place  of  birth, 
last  foreign  residence  and  allegiance,  the  date  of  arrival,  the 
name  of  the  vessel,  if  any,  in  which  he  came  to  the  United  States, 
and  the  present  place  of  residence  in  the  United  States  of  said 
alien :  Provided,  however.  That  no  alien  who,  in  conformity 
with  the  law  in  force  at  the  date  of  his  declaration,  has  declared 
his  intention  to  become  a  citizen  of  the  United  States  shall  be 
required  to  renew  such  declaration.^ 

(b) 
§  357.   Exceptions. 

The  requirement  as  to  a  declaration  of  intention  is  removed 
in  certain  exceptional  situations  specified  in  the  statutory  law. 
Thus,  under  the  Act  of  ^Nlay  9,  1918,  a  person  not  an  alien  enemy 
who  had  resided  uninterruptedly  within  the  United  States  during 
the  period  of  five  years   next  preceding   July  1,  1914,  and  was 

more  than  seven  years  after  the  making  of  a  declaration  of  intention  was 
applicable  to  declarations  made  before  the  Act  was  passed,  the  enactment  not 
invalidating  such  old  declarations,  but  causing  the  time  to  run  from  the  date 
of  the  declaration. 

1  §  4,  subdivision  2,  of  the  Act  of  June  29,  1906,  and  the  construction 
placed  upon  it  in  the  case  of  United  States  v.  Ness,  245  U.  S.  319. 

2  Chap.  3592,  §  4,  Par.  1,  34  Stat.  596,  U.  S.  Comp.  Stat.  1918,  §  4352(1). 

631 


§  357  NATIONALITY 

on  that  date  otherwise  qualified  to  become  a  citizen  of  the  United 
States,  except  that  he  had  not  made  the  declaration  of  intention 
required  by  law,  and  who  during  or  prior  to  that  time,  because  of 
misinformation  regarding  his  "citizenship  status"  had  erroneously 
exercised  the  rights  and  performed  the  duties  of  a  citizen  of  the 
United  States  in  good  faith,  was  permitted  to  file  his  petition 
for  naturalization  without  making  the  preliminary  declaration 
of  intention  required  of  other  aliens.^ 

According  to  the  same  Act  any  alien  serving  in  the  military 
or  naval  service  of  the  United  States  during  the  time  when  it  was 
engaged  in  the  then  existing  war  was  permitted  to  file  his  petition 
for  naturalization  without  making  the  preliminary  declaration 
of  intention  and  without  proof  of  the  required  five  years'  resi- 
dence within  the  United  States." 

By  virtue  of  the  Act  of  June  29,  1906,  when  any  alien  who 
has  declared  his  intention  to  become  a  citizen  of  the  United  States 
dies  before  he  is  actually  naturalized,  his  widow  and  minor  chil- 
dren may,  by  complying  with  the  other  provisions  of  the  Act, 
be  naturalized  without  making  any  declaration  of  intention.^ 
According  to  the  Act  of  February  24,  1911,  when  an  alien  who 
has  declared  his  intention,  becomes  insane  before  he  is  actually 
naturalized,  and  his  wife  thereafter  makes  a  homestead  entry 
under  the  land  laws  of  the  United  States,  she  and  their  minor 
children  may,  by  complying  with  the  other  provisions  of  the 
naturalization  laws,  be  naturalized  without  making  any  declara- 
tion of  intention.^ 

(c) 

§  358.    Does  not  Confer  Citizenship. 

A  declaration  of  intention  is  merely  one  of  the  steps  to  be  taken 
by  an  alien  seeking  admission  to  citizenship.^  Such  action  does 
not  imply  a  renunciation  of  allegiance,  but  simply  expresses  the 
purpose  of  the  declarant  to  make  such  renunciation  at  a  future 

1  Chap.  69,  40  Stat.  545,  U.  S.  Comp.  Stat.  1918,  §  4352(10).  See,  also, 
exception  under  former  statutes  now  repealed,  and  noted  in  Moore,  Dig., 
Ill,  334-336;  also  provisions  of  the  Act  of  June  25, 1910,  Chap.  401,  §  3,  36 
Stat.  830,  repealed  by  the  Act  of  May  9,  1918. 

2  Chap.  69,  40  Stat.  542,  U.  S.  Comp.  Stat.  1918,  §  4352(7). 

3  Par.  6,  §  4,  34  Stat.  596,  U.  S.  Comp.  Stat.  1918,  §  4352(6).  See,  also, 
Act  of  April  30,  1900,  31  Stat.  161,  dispensing  with  a  previous  declaration  of 
intention  by  persons  residing  in  Hawaii  for  at  least  five  years  prior  to  the  tak- 
ing effect  of  the  Act. 

*  Chap.  151,  36  Stat.  929,  U.  S.  Comp.  Stat.  1918,  §  4365. 
5  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Hicks,  Minister  to  Peru,  May  8,  1890, 
For.  Rel.  1890,  695,  Moore,  Dig.,  Ill,  342. 

632 


FIVE    YEARS'    RULE  [§  359 

time.^  A  declaration  of  intention  does  not,  therefore,  confer 
citizenship  ^  or  effect  naturalization.^ 

It  seems  important  to  observe,  however,  that  as  a  possible 
limitation  upon  or  exception  to  the  principle  above  stated,  the 
existing  statutory  law  of  the  United  States  declares  that  every 
seaman,  being  an  alien,  shall,  after  his  declaration  of  intention 
to  become  a  citizen  of  the  United  States,  and  after  he  shall  have 
served  three  years  upon  such  merchant  or  fishing  vessels  of  the 
United  States,  "be  deemed  a  citizen  of  the  United  States  for  the 
purpose  of  serving  on  board  any  such  merchant  or  fishing  vessel 
of  the  United  States."  ^ 

(5) 
Residence 

(a) 
§  359.   Five  Years'  RtUe. 

According  to  the  Act  of  June  29,  1906,  it  must  be  made  to  appear 
to  the  satisfaction  of  the  court  admitting  any  alien  to  citizenship, 
that  immediately  preceding  the  date  of  his  application  he  has 
resided  continuously  within  the  United  States  five  years  at  least, 
and  within  the  State  or  territory  where  such  court  is  at  the  time 
held  one  year  at  least.^  This  conforms  with  the  requirement  of 
Section  2170  of  the  Revised  Statutes  forbidding  the  admission 
to  citizenship  of  one  "  who  has  not  for  the  continued  term  of  five 
years  next  preceding  his  admission  resided  within  the  United 
States." 

The  term  "residence"  doubtless  refers,  as  Mr.  Gresham,  Secre- 
tary of  State,  declared  in  1893,  to  actual  residence  in  the  United 

»  Air.  Blaine,  Secy,  of  State,  to  M  Hicks,  Minister  to  Peru,  Feb.  26,  1890, 
For.  Rel.  1890,  694,  Moore,  Dig.,  Ill,  341;  al.-^o  Mr.  Cass,  Secv.  of  State, 
to  Mr.  Washburne,  March  9,  1857,  46  MS.  Dom.  Let.  379,  Moore,  Dig., 
Ill,  338. 

2  Minneapolis  v.  Reum,  56  Fed.  576 ;  In  re  Moses,  83  Fed.  995 ;  Dorsey  v. 
Brigham,  177  Ills.  250;  Frick  v.  Lewis,  195  Fed.  693,  697;  United  States 
V.  Uhl,  211  Fed.  628,  631.     See  executive  order  of  President  Roosevelt,  April 

6,  1907,  concerning  Citizenship,  in  relation  to  paragraph  143  of  the  existing 
Instructions  to  the  Diplomatic  Officers  of  the  United  States.  Also  Mr. 
Buchanan,  Secv.  of  State,  to  Mr.  Campbell,  Consul  at  Havana,  July  26, 1848, 
10  MS.  Desp.  to  Consuls,  473,  Moore,  Dig.,  Ill,  337;  Circular  Notice  of  Mr. 
Bryan,  Secy,  of  State,  respecting  "Liability  for  Military  Service  in  Foreign 
Countries  of  Persons  Residing  in  the  United  States  ",  Aug.  14,  1914. 

3  Mr.  Fish,  Secv.  of  State,  to  Mr.  de  Luna,  April  22,  1869,  81  Dom.  Let. 

7,  Moore,  Dig.,  Ill,  338. 

;*  Chap.  69,  Act  of  May  9,  1918,  40  Stat.  542,  544.  It  may  be  noted  that 
this  Act  is  not  to  be  construed  to  repeal  or  modify  anv  portion  of  the  Seamen's 
Act  of  March  4,  1915,  38  Stat.  1164.     See  Seamen,  infra,  §  394. 

^  Par.  4,  §  4,  34  Stat,  at  L.  596,  598,  U.  S.  Comp.  Stat.  1918,  §  4352  (4). 

633 


§  359]  NATIONALITY 

States.^  The  continued  term  has  been  regarded  by  the  Depart- 
ment of  State  as  not  interrupted  by  a  transient  sojourn  abroad,-  the 
opinion  being  expressed,  however,  that  an  extended  lodgment 
in  a  foreign  country  would  be  incompatible  with  the  requirements 
of  the  statute,^  and  that  it  remains  for  the  court  of  naturalization 
to  decide  in  the  particular  case  whether  the  absence  suffices  to  pre- 
vent the  issuance  of  a  certificate  of  citizenship.* 

The  courts  of  the  United  States  have  concurred  in  the  view 
that  continuous  residence  is  capable  of  interruption.  There 
seems  to  be  a  tendency,  however,  to  regard  the  intention  of  the 
applicant  to  give  up  his  residence  in  the  United  States  rather  than 
the  length  of  his  sojourn  abroad,  the  test  of  whether  the  req- 
uisite continuity  has  been  broken.^  The  length  of  such  sojourn 
may,  however,  be  so  great  as  to  destroy  the  value  of  intention.^ 

(b) 

§  360.    Certain  Exceptions. 

According  to  the  Act  of  May  9,  1918,  any  alien  (or  any  Porto 
Rican  not  a  citizen  of  the  United  States),  of  the  age  of  twenty- 
one  years  and  upward,  who  had  enlisted  in  or  entered  or  might 
thereafter  enlist  in  or  enter  the  armies  of  the  United  States,  either 
the  Regular  or  the  Volunteer  Forces,  or  the  National  Army,  the 

^  Communication  to  Mr.  Terrell,  Minister  to  Turkey,  Nov.  2,  1893,  For. 
Rel.  1893,  701,  Moore,  Dig.,  Ill,  353. 

2  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Cramer,  Minister  to  Switzerland, 
No.  138,  May  6,  1885,  MS.  Inst.  Switzerland,  II,  251,  Moore,  Dig.,  Ill, 
356 ;  Mr.  Hill,  Acting  Secy,  of  State,  to  Mr.  Leishman,  Minister  to  Turkey, 
June  14,  1901,  For.  Rel.  1901,  520,  Moore,  Dig.,  Ill,  356. 

^  Mr.  Olnev,  Secy,  of  State,  to  Mr.  Breckinridge,  Minister  to  Russia, 
No.  169,  Jan."27,  1896,  MS.  Inst.  Russia,  XVII,  406,  Moore,  Dig.,  Ill,  356; 
Mr.  Bayard,  Secy,  of  State,  to  Mr.  Cramer,  Minister  to  Switzerland,  1885 
and  1886,  Moore,  Dig.,  Ill,  355,  and  documents  there  cited;  Mr.  Bacon, 
Acting  Secy,  of  State,  to  Mr.  White,  Ambassador  to  Italy,  May  25,  1906, 
For.  Rel.  1906,  II,  912. 

^  Mr.  Hill,  Acting  Secy,  of  State,  to  Mr.  Leishman,  Minister  to  Turkey, 
June  14,  1901,  For.  Rel.  1901,  520,  Moore,  Dig.,  Ill,  356.  See,  also,  concern- 
ing the  meaning  of  "continued  residence",  Van  Dyne,  Naturalization,  95- 
105. 

5  In  re  Schneider,  164  Fed.  335;  United  States  v.  Aakervik,  180  Fed.  137; 
United  States  v.  Cantini,  199  Fed.  857,  860;  United  States  v.  Rockteschell, 
208  Fed.  630;  In  re  Deans,  208  Fed.  1018;  United  States  v.  Cantini,  212 
Fed.  925.  See,  also.  In  re  Cameron,  165  Fed.  112;  also  with  respect  to  the 
requirements  of  the  statute.  United  States  v.  Shanahan,  232  Fed.  169 ;  United 
States  V.  Griminger,  236  Fed.  285 ;  In  re  Reichenburg,  238  Fed.  859 ;  In  re 
Cook,  239  Fed.  782;  United  States  v.  Jorgenson,  241  Fed.  412;  United  States 
V.  Ginsberg,  244  Fed.  209. 

6  United  States  v.  Bragg,  257  Fed.  588,  where  physical  absence  for  four 
years  and  seven  months  of  the  five-year  period  required  for  residence  in  the 
United  States  was  decisive  of  failure  to  meet  with  the  requirements  of  the 
Act. 

634 


CERTAIN    EXCEPTIONS  [§  360 

National  Guard  or  Naval  Militia  of  any  State,  Territory,  or  the 
District  of  Columbia,  or  the  State  militia  in  Federal  service,  or 
in  the  United  States  Navy  or  Marine  Corps,  or  in  the  United 
States  Coast  Guard,  or  who  had  served  for  three  years  on  board 
of  any  vessel  of  the  United  States  Government,  or  for  three  years 
on  board  of  merchant  or  fishing  vessels  of  the  United  States  of 
more  than  twenty  tons  burden,  and  while  still  in  the  service  on 
a  reenlistment  or  reappointment,  or  within  six  months  after  an 
honorable  discharge  or  separation  therefrom,  or  while  on  furlough 
to  the  Army  Reserve  or  Regular  Army  Reserve  after  honorable 
service,  might,  on  presentation  of  the  required  declaration  of 
intention,  petition  for  naturalization  without  proof  of  the  re- 
quired five  years'  residence  within  the  United  States,  if  upon 
examination  by  the  representative  of  the  Bureau  of  Naturaliza- 
tion (in  accordance  with  the  requirements  of  the  subdivision  of 
the  Act),  it  was  shown  that  such  residence  could  not  be  estab- 
lished.i 

According  to  the  same  Act  any  alien  serving  in  the  military 
or  naval  service  of  the  United  States  during  the  time  it  was  en- 
gaged in  the  existing  war,  was  permitted  to  file  a  petition  for 
naturalization  without  proof  of  the  required  five  years'  residence 
within  the  United  States.^  Again,  any  alien  declarant  who  had 
served  in  the  United  States  Army  or  Navy,  or  the  Philippine 
Constabulary,  and  had  been  honorably  discharged  therefrom, 
and  had  been  accepted  for  service  in  either  the  military  or  naval 
service  of  the  United  States  on  the  condition  that  he  should  be- 
come a  citizen  of  the  United  States,  was  permitted  to  file  his 
petition  for  naturalization  upon  proof  of  continuous  residence 
within  the  United  States  for  the  three  years  preceding  his  peti- 
tion, by  two  witnesses,  citizens  of  the  United  States.^ 

1  Chap.  69,  40  Stat.  542.     This  Act  repealed  Rev.  Stat.  §§  2166  and  2174. 

The  provisions  stated  in  the  text  were  also  made  applicable  to  "any  native- 
born  Filipino  of  the  age  of  twenty-one  years  and  upward  who  has  declared 
his  intention  to  become  a  citizen  of  the  United  States  and  who  has  enlisted 
or  may  hereafter  enlist  in  the  United  States  Navy  or  Marine  Corps  or  the 
Naval  Auxiliary  Service,  and  who,  after  service  of  not  less  than  three  years, 
may  be  honorably  discharged  therefrom,  or  who  may  receive  an  ordinary 
discharge  with  recommendation  for  re-enlistment." 

'  Chap.  69,  40  Stat.  542.  It  has  been  noted  tha,t  such  individuals  were 
excused  from  making  the  preliminary  declaration  of  intention. 

3  40  Stat.  543.  It  was  declared  that  "in  these  cases  only  residence  in  the 
Philippine  Islands  and  the  Panama  Canal  Zone  by  aliens  may  be  considered 
residence  within  the  United  States,  and  the  place  of  such  military  service  shall 
be  construed  as  the  place  of  residence  required  to  be  established  for  purposes 
of  naturalization." 

The  same  Act  provided  that  any  alien,  or  any  person  owing  permanent 
allegiance  to  the  United  States  embraced  within  "this  subdivision  ",  might 

635 


§  360]  NATIONALITY 

Provision  was  also  made  that  any  person  who  was  serving  in  the 
military  or  naval  forces  of  the  United  States  at  the  termination 
of  the  existing  war,  and  any  person  who  before  its  termination 
might  have  been  honorably  discharged  from  the  military  or  naval 
services  of  the  United  States  on  account  of  disability  incurred  in 
line  of  duty,  should,  if  he  applied  to  the  proper  court  for  admis- 
sion as  a  citizen  of  the  United  States,  be  relieved  from  the  neces- 
sity of  proving  that  immediately  preceding  the  date  of  his  appli- 
cation he  had  resided  continuously  within  the  United  States  for 
the  time  required  by  law  of  other  aliens,  or  within  the  State, 
Territory  or  the  District  of  Columbia  for  the  year  immediately 
preceding  the  date  of  his  petition  for  naturalization.-^ 

e 

Conventional  Arrangements  of  the  United  States 

(1) 

§  361.   Essential  Features  of  the  Treaties. 

The  naturalization  treaties  of  the  United  States  fall  chronologi- 
cally into  two  distinct  series,  the  first  of  which  was  concluded  be- 
tween 1868  (when  George  Bancroft  signed  the  convention  that 
bears  his  name  with  the  North  German  Union)  and  1872,^  and 
the  second  between  1902  and  1911.^  With  two  exceptions,^  a 
European  State  was  a  party  to  each  of  the  earlier  group,  while 

file  his  petition  for  naturalization  in  the  most  convenient  court  without  proof 
of  residence  within  its  jurisdiction,  notwithstanding  the  limitations  in  that 
regard  laid  down  in  section  3  of  the  Act  of  June  29,  1906. 

1  Chap.  69,  40  Stat.  546. 

2  The  treaties  of  the  first  series  were  concluded  with  the  States  named,  in 
the  following  order :  North  German  Union,  Feb.  22,  1868,  Malloy's  Treaties, 
II  1298;  Bavaria,  May  26,  1868,  id.,  I,  60;  Mexico,  July  10,  1868.  id.,  I, 
1132;  Baden,  July  19,  1868,  id.,  I,  53;  Wiirttemberg,  July  27,  1868,  id., 
II  1895;  Hesse,  Aug.  1,  1868,  id.,  I,  949;  Belgium,  Nov.  16,  1868,  id.,  I, 
80;  Sweden  and  Norwav,  May  26,  1869,  id.,  II,  1758;  Great  Britain,  May  13, 
1870,  id.,  1,  691;  Austria-Hungary,  Sept.  20,  1870,  id.,  I,  45;  Great  Britain 
(supplemental  convention),  Feb.  2.3,  1871,  id.,  I,  698;  Ecuador,  May  6,  1872, 
id.,  I,  434;    Denmark,  July  20,  1872,  id.,  I,  384. 

'  The  treaties  of  the  second  series  were  concluded  with  the  States  named, 
in  the  following  order :  Haiti,  March  22,  1902,  Mallov's  Treaties,  I,  939;  sup- 
plemental convention,  Feb.  28,  1903,  id.,  I,  941;  Peru,  Oct.  15,  1907.  id.,  II, 
1449;  Salvador,  March  14,  1908.  id.,  II,  1570;  Brazil,  April  27.  1908.  Charles' 
Treaties,  19;  Portugal,  May  7,  190S,  Malloy's  Treaties.  II.  1468;  Hon- 
duras, June  23,  1908,  id.,  1,958;  Uruguav,  Aug.  10,  1908,  id.,  II,  1829;  Nic- 
aragua, Dec.  7,  1908,  Charles'  Treaties.  95;  Argentina.  Aug.  9,  1909,  id., 
343;  Costa  Rica,  June  10,  1911,  id.,  23;  Nicaragua,  Supplementary  con- 
vention, June  17,  1911.  U.  S.  Treaty  Series,  No.  567. 

*  The  two  treaties  which  constituted  the  exception  concluded  with  Mexico, 
July  10,  1868,  and  with  Ecuador,  May  6,  1872,  are  no  longer  in  force. 

636 


ESSENTIAL   FEATURES    OF    THE    TREATIES       [§  361 

with  one  exception/  those  of  the  later  were  concluded  with  States 
of  Latin-America. 

The  treaties  of  both  series  are  alike  in  that  they  recognize  the 
propriety  of  naturalization  and  the  change  of  allegiance  effected 
thereby.  Almost  all  provide  that  a  declaration  of  intention 
shall  not  serve  to  perfect  naturalization.^  It  is  a  common  al- 
though not  universal  provision  that  a  naturalized  citizen,  upon 
his  return  to  the  State  of  former  allegiance,  may  there  be  subjected 
to  criminal  prosecution  for  acts  committed  prior  to  emigration.^ 
He  is  not,  however,  to  be  made  punishable  for  the  act  of  emigration, 
according  to  a  provision  common  to  the  later  treaties."*  which  also 
finds  occasional  expression  in  the  earlier  series.^  With  the  excep- 
tion of  the  convention  with  Great  Britain  of  INIay  13,  1870,  and 
that  with  Denmark  of  July  20,  1872,  all  of  the  earlier  treaties 
make  the  recognition  of  naturalization  depend  upon  a  continuous 
or  uninterrupted  residence  of  five  years  within  the  territory  of  the 
State  of  adoption.^ 

The  treaties  usually  provide  that  the  renewal  of  residence  by 
the  naturalized  citizen  in  the  State  of  former  allegiance,  without 
intention  to  return  to  the  State  of  adoption,  shall  constitute  a 
renunciation  of  naturalization,  and  that  such  intention  may  be 
held  to  exist  where  such  person  resides  more  than  two  years  in  the 
former  State.^    The  treaties  of  the  later  series  commonly  provide, 

^  The  exceptional  treaty  is  that  concluded  with  Portugal,  May  7,  1908. 

2  The  treaty  with  Portugal  of  May  7,  1908,  is  the  one  convention  of  the 
later  series  which  lacks  this  provision.  Of  the  earlier  series  it  is  not  found  in 
those  with  Belgium,  Great  Britain  and  Denmark. 

^  A  limitation  is  commonly  expres.sed  in  case  the  right  to  punish  has  been 
lost  by  lapse  of  time  as  provided  by  law.  See  Naturalization  Not  Retro- 
active, infra,  §  ,364. 

^  Compare,  however,  in  this  respect,  Art.  II,  convention  with  Portugal, 
May  7,  1908,  Malloy's  Treaties,  II,  1468. 

*  Protocol  relating  to  Art.  II  of  the  treaty  with  Bavaria  of  May  26,  1868, 
Malloy's  Treaties,  I,  62 ;  also  protocol  relating  to  Art.  II,  of  the  treaty  with 
Sweden  and  Nortvay  of  May  26,  1869,  id.,  II,  1760. 

The  treaty  with  Baden  of  July  19,  1868,  and  that  with  Austria-Hungary 
of  Sept.  20,  1870,  provide  that  one  who,  by  or  after  his  emigration  has  trans- 
gressed the  legal  provisions  on  military  duty  by  any  acts  or  omissions  be- 
yond those  enumerated  in  the  convention,  is  not  thereafter  to  be  subjected 
to  military  service  or  criminal  prosecution  for  the  non-fulfillment  of  such 
military  duty. 

« In  the  treaty  with  Belgium  of  Nov.  16,  1868,  the  five  years'  residence  is 
made  necessary  merely  to  secure  a  release  from  military  service.  In  that 
with  Sweden  and  Norway  of  May  26,  1869,  it  is  not  essential  if  the  individual 
has  been  discharged  from  his  original  citizenship.     Moore,  Dig.,  Ill,  407-408. 

^  While  this  exact  provision  is  not  found  in  some  of  the  earlier  treaties 
(such  as  those  with  Baden,  Belgium,  Great  Britain  and  Austria-Hungary), 
it  is  present  in  all  of  the  later  ones.  Conc^ning  the  interpretation  of  this 
provision  in  the  German  treaties,  see  documents  in  Moore,  Dig.,  Ill,  744-754. 

According  to  a  protocol  annexed  to  the  convention  with  Sweden  and  Nor- 

637 


§  361]  NATIONALITY 

however,  that  this  presumption  may  be  destroyed  by  evidence 
to  the  contrary,^ 

A  provision  peculiar  to  the  later  treaties,  and  present  in  all  but 
two  of  them, ^declares  that  the  term  "  citizen, "as  therein  employed, 
signifies  a  person  to  whom  the  nationality  of  either  of  the  con- 
tracting parties  attaches.^  These  agreements  would  appear, 
therefore,  to  embrace  within  their  scope  any  persons  of  American 
nationality,  whether  or  not  citizens  of  the  United  States. 

On  January  28,  1913,  President  Taft  made  proclamation  of 
the  naturalization  convention  signed  August  13,  1906,  at  the  Third 
International  American  Conference  at  Rio  de  Janeiro,  and  pur- 
porting to  establish  the  status  of  naturalized  citizens  who  should 
again  take  up  their  residence  in  the  country  of  their  origin.'*  The 
agreement  provided  that  if  a  citizen,  a  native  of  any  of  the  coun- 
tries signing  the  convention,  and  naturalized  in  another,  should 
take  up  his  residence  in  his  native  country  without  the  intention 
of  returning  to  the  country  in  which  he  had  been  naturalized,  he 
would  be  considered  as  having  reassumed  his  original  citizenship, 
and  as  having  renounced  the  citizenship  acquired  by  naturaliza- 

way  of  May  26,  1869,  it  was  agreed  that  "If  a  Swede  or  Norwegian,  who  has 
become  a  naturalized  citizen  of  the  United  States,  renews  his  residence 
in  Sweden  or  Norway  without  the  intent  to  return  to  America,  he  shall  be 
held  by  the  Government  of  the  United  States  to  have  renounced  his  Ameri- 
can citizenship." 

"The  intent  not  to  return  to  America  may  be  held  to  exist  when  a  person 
so  naturalized  resides  more  than  two  years  in  Sweden  or  Norway."  Mal- 
loy's  Treaties,  II,  1761.  In  1911,  the  Department  of  State  announced,  in 
correspondence  with  the  Norwegian  Government,  that  the  protocol  was 
interpreted  to  mean  "that  a  former  Norwegian  who  secures  naturalization 
in  the  United  States  may  b«  deemed  to  have  renounced  his  American  citi- 
zenship before  the  expiration  of  the  two  years  if  it  be  satisfactorily  shown 
that  he  does  not  intend  to  return  to  the  United  States."  For.  Rel.  1911, 
673.     See,  also,  in  this  connection,  United  States  v.  Howe,  231  Fed.  646. 

1  This  provision  was  employed  in  the  treaty  with  Mexico  of  July  10,  1868, 
and  again  in  that  with  Ecuador  of  May  6, 1872,  both  of  which  agreements  are 
no  longer  in  force.  It  did  not  again  find  expression  until  the  convention  with 
Peru  of  Oct.  15,  1907.  Since  then  it  has  been  commonly  embodied  in  the 
naturalization  treaties  of  the  United  States.  An  exception,  however,  is 
seen  in  that  with  Portugal  of  Mav  7,  1908.  See,  also,  in  this  connection, 
Sec.  2,  Act  of  March  2,  1907,  34  Stat.  1228  in  reference  to  the  Expatriation 
of  Citizens  and  their  Protection  Abroad. 

2  The  exceptions  are  the  treaties  with  Haiti  of  March  22,  1902,  and  with 
Portugal  of  May  7,  1908. 

'  According  to  Art.  V  of  the  Convention  with  Nicaragua  of  Dec.  7,  1908 : 
"It  is  agreed  ...  to  define  the  word  'citizenship',  as  used  in  this  Convention, 
to  mean  the  status  of  a  person  possessing  the  nationality  of  the  United  States 
or  Nicaragua."     Charles'  Treaties,  96. 

*  U.  S.  Treaty  Series,  No.  575.  The  proclamation  announced  that  the 
convention  had  been  duly  ratified  by  the  United  States,  by  and  with  the 
advice  and  consent  of  the  Senat#thereof,  and  by  the  Governments  of  Colombia, 
Chile,  Costa  Rica,  Nicaragua,  Guatemala,  Brazil,  the  United  States  of  Mexico, 
Ecuador,  Honduras,  Panama,  Salvador,  and  the  Argentine  RepubUc. 

638 


CONTROVERSIES   WITH    GERMANY  [§362 

tion.  It  was  declared  that  the  intention  not  to  return  would  be 
presumed  to  exist  when  the  naturalized  person  should  have  re- 
sided in  his  native  country  for  more  than  two  years.  Such  a 
presumption  might,  it  was  said,  be  destroyed  by  evidence  to  the 
contrary.^ 

(2) 

§  362.    Controversies  with  Germany. 

The  return  to  Germany  of  former  subjects  naturalized  in  the 
United  States  pursuant  to  the  terms  of  conventions  with  the 
German  States  gave  rise  to  prolonged  controversy.^  The  Ban- 
croft treaties  with  the  North  German  Union,  Bavaria,  Wiirttem- 
berg  and  Hesse,  contained  the  common  provision  that  renewal  of 
residence  by  a  naturalized  citizen  in  the  territory  of  the  State 
of  former  allegiance,  without  intention  to  return  to  that  of  the 
State  of  adoption,  should  constitute  renunciation  of  naturaliza- 
tion, and  that  such  intention  might  be  held  to  exist  after  more 
than  two  years'  residence  in  the  domain  of  the  former  State.^ 
The  United  States  contended  that  this  provision,  especially  in 
the  light  of  Article  I  of  the  treaty  with  Prussia  of  May  1,  1828 
(conferring  upon  the  inhabitants  of  the  respective  States  the  right 
to  reside  in  the  territories  of  each  party),*  gave  to  the  naturalized 
American  citizen  the  right  to  return  and  reside  for  at  least  two 
years  in  the  Stafe~from  which  he  had  come  and  whose  allegiance 
he  had  renounced,  in  the  absence  of  any  prior  manifestation  of  an 
intention  not  to  return  again  to  the  United  States,  and  provided 
also  that  his  conduct  throughout  such  sojourn  was  blameless.^ 

^  Arts.  I  and  II.  Mr.  R.  W.  Flournoy,  Jr.,  of  the  Department  of  State,  has 
declared  that  this  convention  is  in  effect  a  naturaHzation  treaty,  in  which 
the  usual  provisions  concerning  recognition  of  naturalization,  although  not 
expressed,  are  to  be  necessarily  implied. 

2  See,  generally,  Moore,  Dig.,  Ill,  376-406,  and  documents  there  cited. 

Alsace-Lorraine.  Concerning  the  controversy  respecting  the  applicability 
of  the  Bancroft  treaties  to  Alsace-Lorraine,  and  the  endeavor  of  the  United 
States  to  secure  from  the  German  Government  an  arrangement,  conventional 
or  otherwise,  serving  to  place  American  citizens  born  in  Alsace-Lorraine  upon 
the  same  footing  as  other  American  citizens  of  German  origin  returning  to  that 
countrv  for  legitimate  purposes,  see  documents  in  Moore,  Dig.,  Ill,  364-376; 
also  For.  Rel.  1905,  470^472;  id.,  1906,  I,  648-653;  id.,  1907,  I,  511-514;  id., 
1908,  376-377 ;  also  notice  to  citizens  formerly  subjects  of  Germany  who  con- 
templated returning  to  that  country,  Dept.  of  State,  March  29, 1912. 

'  See,  for  example.  Art.  IV  of  the  convention  with  the  North  German  Union, 
of  Feb.  22,  1868,  Malloy's  Treaties,  II,  1299.  The  convention  with  Baden 
of  Julv  19,  1868,  contained  a  somewhat  different  provision,  id.,  I,  53. 

^  Malloy's  Treaties,  II,  1496. 

5  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Pendleton,  Minister  to  Germany, 
March  12,  1886,  For'  Re).  1887,  369,  Moore,  Dig.,  Ill,  383;  same  to  Mr. 
von  Alvensleben.  German  Minister,  March  4,  1887,  For.  Rel.  1887,  419,  Moore, 
Dig.,  Ill,  395,  397-398. 

639 


§  362]  NATIONALITY 

Germany,  on  the  other  hand,  contended  that  nothing  in  the 
naturalization  treaties,  or  in  the  earher  treaty  with  Prussia,  con- 
ferred upon  the  nature Hzed  American  citizen  an  absolute  right 
to  reside  in  a  treaty  State  for  two  years,  or  deprived  such  State 
of  the  right  to  expel  him  from  its  domain  during  that  period.^ 
It  was  urged  that  when  a  German  had  emigrated  to  the  United 
States  for  the  purpose  of  evading  military  service  and  had  there 
become  naturalized,  his  return  to  and  prolonged  residence  in  Ger- 
many was  so  detrimental  to  its  welfare  by  reason  of  the  pernicious 
influence  of  his  example,  that  his  expulsion  became  necessary 
and  hence  justifiable.^  Moreover,  the  bare  fact  of  emigration 
(when  followed  by  naturalization)  was  regarded  as  prima  facie 
evidence  of  an  intention  to  evade  military  service.^ 

Admitting  the  obvious  possession  by  Germany  of  the  right  of 
expulsion,  the  just  exercise  of  which  was  not  supposedly  curtailed 
by  the  treaties,  the  United  States  persistently  contended  that, 
in  view  of  the  conventions,  the  exercise  of  that  right  became 
arbitrary  when  applied  to  a  naturalized  American  citizen  of  Ger- 
man origin,  who  committed  no  illegal  act  during  his  stay  on  Ger- 
man soil ;  ^  and  that  an  intention  to  evade  military  service  was 
not  to  be  presumed  from  the  bare  fact  of  emigration,  especially 
in  a  case  when,  at  the  time  of  emigration,  military  service  was 
not  due.^ 

In  practice  the  German  Government  became  disposed  to  relax 
the  rigor  of  its  rules  in  cases  where,  upon  adequate  representa- 

'  Mr.  von  Alvensleben,  German  Minister,  to  Mr.  Bayard,  Secy,  of  State, 
July  8,  1886,  For.  Rel.  1887,  416,  Moore,  Dig..  Ill,  391. 

^  Id. ;  also  Count  H.  v.  Bismarck,  Imperial  Secv.  for  Foreign  Affairs,  to  Mr. 
Pendleton,  Minister  to  Germany,  Jan.  6,  1886,  For.  Rel.  1886,  316,  Moore, 
Dig.,  Ill,  382 ;  Baron  Marschall,  Imperial  Minister  for  Foreign  Affairs,  to 
Mr.  Uhl,  American  Ambassador,  March  27,  1897,  For.  Rel.  1897,  209,  Moore, 
Dig.,  Ill,  399. 

'  Mr.  White,  Ambassador  to  Germany,  to  Mr.  Hay,  Secy,  of  State,  Feb. 
16,  1901,  For.  Rel.,  1901,  159,  Moore,  Dig.,  Ill,  404. 

''  Mr.  Bayard,  Secy,  of  State,  to  Mr.  von  Alvensleben,  German  Minister, 
March  4,  1887,  For.  Rel.  1887,  419,  Moore,  Dig.,  Ill,  395. 

^  Mr.  Hay,  Secy,  of  State,  to  Mr.  White,  Ambassador  to  Germany,  Feb. 
5,  1901,  For.  Rel.  1901,  158,  Moore,  Dig.,  Ill,  40.3-404. 

In  a  notice  to  American  citizens  formerly  subjects  of  Germany,  who  con- 
templated returning  to  that  country,  issued  by  the  Department  of  State, 
March  29,  1912,  it  was  declared  that:  "a  naturaUzed  American  of  German 
birth  is  liable  to  trial  and  punishment  upon  return  to  Germany  for  an  offense 
against  German  law  committed  before  emigration,  saving  always  the  limi- 
tations of  the  laws  of  Germany.  If  he  emigrated  after  he  was  enrolled  as  a 
recruit  in  the  standing  army  ;  if  he  emigrated  while  in  service  or  while  on  leave 
of  absence  for  a  limited  time ;  if,  having  an  unlimited  leave  or  being  in  the 
reserve,  he  emigrated  after  receiving  a  call  into  service  or  after  a  pubHc  prqc- 
clamation  requiring  his  appearance,  or  after  war  broke  out,  he  is  liable  t"^  *^rial 
and  punishment  on  return." 

640 


CONTROVERSIES   WITH    AUSTRIA-HUNGARY      [§  363 

tion  by  the  American  Embassy,  it  appeared  that  the  naturalized 
citizen  had  not  in  fact  sought  by  emigration  to  evade  military 
service.^ 

While  the  design  of  the  treaty  provision  was  doubtless  to  ex- 
press agreement  respecting  the  renunciation  of  naturalization, 
rather  than  to  record  a  right  of  residence,  the  language  employed 
seemed  to  justify  the  claim  that  residence  in  the  territory  of  the 
State  of  former  allegiance  should  not  itself  be  deemed  unreasonable, 
still  less  provocative  of  the  exercise  of  the  right  of  expulsion,  so 
long  as  the  resident  committed  no  offense.  If  the  exigencies  of 
domestic  policy  made  it  of  supreme  importance  to  the  German 
contracting  States  to  reserve  the  right  to  expel  any  member 
of  an  entire  class  of  law-abiding  aliens  who  might  attempt  to  re- 
side on  German  soil,  the  treaties  should  have  definitely  proclaimed 
the  fact. 

(3) 

§  363.   Controversies  with  Austria-Hungary. 

The  naturalization  treaty  with  Austria-Hungary  of  September 
20,  1872,2  differed  from  the  Bancroft  treaties  with  the  German 
States  (with  the  exception  of  that  with  Baden  of  July  19,  1868),  in 
that  it  seemed  to  import,  as  Mr.  Hay,  Secretary  of  State,  declared 
in  1900,  that  a  naturalized  American  citizen  might  reside  indefi- 
nitely in  the  country  of  his  origin  without  incurring  any  dis- 
ability, and  without  being  obliged  to  resume  his  original  citizen- 
ship.^ The  treaty  provided  also  that  the  right  to  try  and  punish 
a  former  national  of  the  Austro-Hungarian  INIonarchy,  who  had 
become  a  naturalized  American  citizen,  for  non-fulfillment  of  mili- 
tary duty  prior  to  emigration  was  restricted  to  acts  or  omissions 
enumerated  in  the  convention.^ 

1  See  important  and  interesting  communication  of  Mr.  White,  Ambassa- 
dor to  Germany,  to  Mr.  Hav,  Secy,  of  State,  April  21,  1900,  For.  Eel.  1900, 
25-2fi,  Moore,  Dig.,  Ill,  401. 

2  Art.  IV,  Malloy's  Treaties,  I,  46. 

'  Communication  to  Mr.  Harris,  Minister  to  Austria-Hungary,  July  19, 
1900,  For.  Rel.  1900,  22,  Moore,  Dig.,  III.  421-422.  See,  howeVer,  Sec.  2, 
Act  of  March  2,  1907,  34  Stat,  at  L.  1228,  in  reference  to  the  Expatriation  of 
Citizens  and  Their  Protection  Abroad. 

*  See  documents  cited  in  Moore,  Dig.,  Ill,  414-415,  indicating  a  desire 
on  the  part  of  the  Imperial  and  Royal  Government  in  1899  to  modify  the 
treaty  in  this  and  other  respects.  Concerning  the  interpretation  placed  by 
the  United  States  upon  the  provision  respecting  uninterrupted  residence  for 
five  years  as  a  condition  precedent  to  naturalization,  see  Mr.  Tripp,  Min- 
ister to  Austria-Hungar\^  to  Mr.  Gresham,  Secy,  of  State,  Aug.  23,  1894, 
and  Mr.  Uhl,  Acting  Secv.  of  State,  to  Mr.  Tripp,  Sept.  14,  1894,  For.  Rel. 
1894,  36,  38,  46  Moore,  Dig.,  Ill,  411-412. 

641 


§  363]  NATIONALITY 

Without  any  allegation  of  offense  within  the  terms  of  the  treaty, 
but  rather  upon  the  ground  that  the  individual  had  emigrated  in 
order  to  avoid  military  service,  and  that  his  presence  in  the  coun- 
try thereafter  was  undesirable,  the  Austro-Hungarian  Government 
oftentimes  sought  to  expel  its  former  citizens  of  American  nation- 
ality upon  their  return  to  and  residence  within  its  domain.^  The 
United  States  maintained,  on  the  other  hand,  that  the  propriety 
of  expulsion  depended  upon  the  particular  circumstances  of  each 
case,  that  the  pernicious  character  of  the  returning  person  should 
be  affirmatively  shown  in  justification  of  the  extreme  resort  to 
expulsion,  and  that  the  exercise  of  that  right  should  not  rest 
upon  "a  vague  and  general  theory  of  inconvenient  example."  ^ 

(4) 

§  364.   Naturalization  not  Retroactive. 

Naturalization  cannot  retroactively  affect  a  penalty  imposed 
before  the  naturalization  took  place.^  When  an  alien  who  has 
been  naturalized  in  the  United  States  voluntarily  returns  to  his 
native  country  with  legal  obligations  contracted  before  he  left 
there,  the  naturalization  is  not  held  to  absolve  him  therefrom  if 
the  government  or  individual  to  whom  they  may  be  due  shall 
think  proper  to  enforce  them.'*     In  such  a  spirit  the  naturaliza- 

1  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Hunter,  April  12,  1895,  201  MS. 
Dom.  Let.  480;  Moore,  Dig.,  Ill,  418,  also  Count  Szecsen,  Minister  of  For- 
eign Affairs,  to  Mr.  Harris,  American  Minister,  June  5,  1900,  For.  Rel.  1900, 
21,  22,  Moore,  Dig.,  Ill,  420-421. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Herdliska,  American  Charge  at  Vienna, 
July  9,  1901,  For.  Rel.  1901,  10,  Moore,  Dig.,  Ill,  422;  same  to  Mr.  Harris, 
Minister  to  Austria-Hungary,  July  19,  1900.  For.  Rel.  1900,  22,  Moore,  Dig., 
Ill,  421-422 ;  President  McKinley,  Annual  Message,  Dec.  3.  1900,  For.  Rel. 
1900,  xyi,  Moore,  Dig.,  Ill,  423.  Also  For.  Rel.  1910,  67-71,  respecting  the 
emigration  and  military  service  law  of  Hungary. 

^  The  language  of  the  text  is  that  contained  in  Moore,  Dig.,  Ill,  426,  based 
upon  a  communication  of  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Kunze, 
Aug.  3,  1897,  220  MS.  Dom.  Let.  38.  See,  also,  dpinion  of  Mr.  Black,  Atty.- 
Gen.,  9  Ops.  Attys.-Gen.,  356,  Moore,  Dig.,  Ill,  424;  Mr.  Bayard,  Secy,  of 
State,  to  Mr.  Turner,  Sept.  10,  1885,  157  MS.  Dom.  Let.  109,  Moore,  Dig., 
111,425. 

"It  is  not  the  practice  of  the  Department  to  present  claims  arising  out  of  the 
military  arrest  and  detention  of  naturalized  American  citizens  who  return 
to  the  country  of  their  birth."  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Harris, 
Minister  to  Austria-Hungary,  Sept.  20,  1899,  For.  Rel.  1899,  75,  Moore,  Dig., 
Ill,  426.  For  a  contrary  view  expressed  in  certain  earUer  instances,  see  docu- 
ments cited  in  Moore,  Dig.,  Ill,  426. 

*  The  language  of  the  text  is  that  of  Mr.  Marcy,  Secy,  of  State,  to  Mr. 
Vroom,  Minister  to  Prussia,  No.  37,  Dec.  26,  1856,  MS.  Inst.  Prussia,  XIV, 
242,  Moore,  Dig.,  Ill,  424.  That  the  decree  of  naturaUzation  does  not  operate 
retroactively,  see  Ex  parte  Kyle,  67  Fed.  306 ;  State  v.  Boyd,  48  N.  W.  739 
(Neb.) ;  Dryden  v.  Swinburne.  20  W.  Va.  89 ;  Wulff  v.  Manuel,  23  Pac.  723 
(Mont.),  all  cited  in  Moore,  Dig.,  Ill,  423. 

642 


MARRIAGE   OF  AMERICAN  WOMEN  TO  ALIENS       [§  365 

tion  treaties  of  the  United  States  have  been  conceived.  Pro- 
vision is  commonly  made,  as  has  been  observed,  for  the  punish- 
ment of  a  naturahzed  American  citizen  upon  his  return  to  the 
State  of  former  allegiance  for  the  violation  of  its  criminal  laws 
prior  to  the  date  of  emigration,  unless  the  right  to  punish  has 
been  lost  by  the  lapse  of  time  provided  by  law.^  Desertion  from 
active  military  service  is  not  condoned  by  treaty,^  or  any  other 
form  of  disobedience  to  the  command  of  the  former  sovereign 
with  respect  to  military  service  issued  prior  to  emigration.^ 

f 

Nationality  of  Married  Women 

(1) 
§  365.   Marriage  of  American  Women  to  Aliens.     Rever- 
sion of  Nationality. 

According  to  the  existing  law  of  the  United  States  "any  Ameri- 
can woman  who  marries  a  foreigner  shall  take  the  nationality  of 
her  husband."  ^  That  her  domicile  or  residence  at  the  time 
of  marriage  is  unimportant  appears  to  be  obvious. 

1  Concerning  cases  relating  to  statutes  of  limitations  under  German  treaties, 
see  Moore,  Dig.,  Ill,  437-441,  and  documents  there  cited. 

2  Mr.  Hill,  Assist.  Secv.  of  State,  to  iMr.  Whelden,  June  19,  1900,  245  MS. 
Dom.  Let.  664,  Moore,  Dig.,  Ill,  425;   also  For.  Rel.  1903,  442. 

^  See  German  military  service  cases  in  Moore,  Dig.,  Ill,  427-437.  Sec  De- 
partment of  State  Circular  Concerning  Liability  for  Military  Service  in  For- 
eign Countries  of  Persons  Residing  in  the  United  States,  Aug.  14,  1914 ;  Cir- 
culars Relating  to  Citizenship,  1916,  p.  62 ;  also  Mr.  Lansing,  Secy,  of  State, 
to  Messrs.  Hubbard  &  Hubbard,  Aug.  18,  1915,  id.,  80. 

See,  also,  Expatriation,  Difficulties  with  Certain  Foreign  States,  Respect- 
ing Military  Service,  infra,  §  381 ;  Relation  of  Expatriation  to  Emigra- 
tion, infra,  §  377. 

That  a  member  of  the  reserve  corps  who  does  not  respond  to  a  call  to  active 
service  made  after  his  emigration  to  the  United  States  should  not,  after  his 
naturalization  therein,  upon  his  return  to  the  State  of  origin,  be  punished  as  a 
deserter,  under  the  German  and  Austro-Hungarian  treaties,  see  respectively, 
Mr.  Fish,  Secv.  of  State,  to  Mr.  Davis,  Minister  to  Germany,  No.  Ill,  July 
21,  1875  (in  the  case  of  Henry  Mumbour),  MS.  Inst.  Germany,  XVI,  76, 
Moore,  Dig.,  Ill,  430;  and  Mr.  Hay,  Secy,  of  State,  to  Mr.  Harris,  Minister 
to  Austria-Hungary,  May  10,  1900,  For.  Rel.  1900,  30,  31,  Moore,  Dig.,  Ill, 
444. 

'  §  3,  Chap.  2534,  Act  of  March  2,  1907,  34  Stat.  1228,  U.  S.  Comp  Stat. 
1918,  §  3960. 

In  the  course  of  the  opinion  sustaining  the  law  in  Mackenzie  v  Hare,  239 
U.  S.  299,  Mr.  Justice  McKenna  said:  "The  identity  of  husband  and  wife  is 
an  ancient  principle  of  our  jurisprudence.  It  was  neither  accidental  nor 
arbitrary  and  worked  in  many  instances  for  her  protection.  There  has  been, 
it  is  true,  much  relaxation  of  it  but  in  its  retention  as  in  its  origin  it  is  de- 
termined by  their  intimate  relation  and  unity  of  interests,  and  this  relation 
and  unity  may  make  it  of  public  concern  in  many  instances  to  merge  their 
identity,  and  give  dominance  to  the  husband.     It  has  purpose,  if  not  neces- 

643 


§  365]  NATIONALITY 

At  the  termination  of  the  marital  relation  she  may  resume  her 
American  citizenship,  if  abroad,  by  registering  as  an  American 
citizen  within  one  year  with  a  consul  of  the  United  States,  or  by 
returning  to  reside  in  the  United  States,  or,  if  residing  in  the 
United  States  at  the  termination  of  the  marital  relation,  by  con- 
tinuing to  reside  therein.^  Thus  the  termination  of  the  marital 
relation,  whether  by  the  death  of  the  husband  or  by  divorce, 
does  not  in  itself  effect  a  reversion  of  nationality,  but  simply 
capacitates  the  woman,  upon  compliance  with  the  conditions 
prescribed,  to  resume  her  former  American  citizenship.  That 
such  resumption,  in  order  to  become  the  natural  consequence  of 
the  termination  of  the  marital  relation,  is  conditioned  upon  the 
return  to  reside  in,  or  of  continued  residence  in  the  United  States, 
is  a  reasonable  provision,  in  harmony  with  the  position  taken  by 
the  Department   of    State.^     That  resumption  may  be  effected 

sity,  in  purely  domestic  policy;  it  has  greater  purpose  and,  it  may  be, neces- 
sity, in  international  policy.  And  this  was  the  dictate  of  the  act  in  contro- 
versy. ...  It  may  be  conceded  that  a  change  of  citizenship  cannot  be  ar- 
bitrarily imposed,  that  is,  imposed  without  the  concurrence  of  the  citizen. 
The  law  in  controversy  does  not  have  that  feature.  It  deals  with  a  condi- 
tion voluntarily  entered  into,  with  notice  of  the  consequences.  •  ■  •  This 
is  no  arbitrary  act  of  government.  It  is  one  which,  regarding  the  inter- 
national aspects,  judicial  opinion  has  taken  for  granted  would  not  only  be 
valid  but  demanded."      (311-312.) 

See,  also,  In  re  Rionda,  164  Fed.  368;  United  States  v.  Cohen,  179  Fed. 
834;    Techt  v.  Hughes,  128  N.  E.  185  (New  York). 

Concerning  the  divergent  opinions  expressed  in  the  United  States  prior 
to  the  enactment  of  this  law,  respecting  the  effect  of  marriage  to  a  foreigner 
upon  the  nationality  of  an  American  woman,  see  documents  in  Moore,  Dig., 
Ill,  448-454;  Van  Dyne,  Naturalization,  242-255.  See,  als9,  Thornton, 
Umpire,  in  M.  J.  de  Lizardi  case,  Mexican-American  Commission,  Conven- 
tion of  July  4,  1868,  Moore,  Arbitrations,  III,  2483;  same  Umpire,  in  case 
of  Heirs  of  Felix  Maxan,  before  same  commission,  id.,  2485. 

See  Fred  K.  Nielsen,  "  Some  Vexatious  Questions  Relating  to  Nationality," 
Columbia  Law  Rev.,  XX,  840. 

1  The  language  of  the  text  is  that  of  Sec.  3,  Act  of  March  2,  1907,  34  Stat. 
1228. 

For  cases  arising  prior  to  the  Act  of  1907,  see  Documents  in  Moore,  Dig., 
Ill,  454-456 ;  especially  the  Case  of  Nellie  Grant  Sartoris,  daughter  of  Presi- 
dent Grant,  who  had  married  a  British  subject,  had  resided  in  England  until 
his  death  in  1896,  and  was  by  joint  resolution  of  Congress  of  May  18,  1898, 
30  Stat.  1496,  "on  her  own  application,  unconditionally  readmitted  to  the 
character  and  privileges  of  a  citizen  of  the  United  States",  pursuant  to  Art. 
Ill  of  the  Naturalization  Convention  with  Great  Britain  of  May  13,  1870. 
Malloy's  Treaties,  I,  692. 

2  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  Clay,  Minister  to  Switzerland, 
Jan.  26,  1906,  For.  Rel.  1906,  II,  1371  ;  Mr.  Root,  Secy,  of  State,  to  Mr. 
Vogel,  Swiss  Minister,  June  2, 1906,  in  which  he  declared  :  "Under  the  practice 
of  the  Department  of  State  a  widow  or  a  woman  who  has  obtained  an  abso- 
lute divorce,  being  an  American  citizen  and  who  has  married  an  alien,  must 
return  to  the  United  States,  or  must  have  her  residence  here  in  order  to  have 
her  American  citizenship  revert  on  becoming /ew/MC  sole."     Id.,  II,  1365. 

See,  also,  opinion  of  Plumley,  Umpire,  in  the  Stevenson  Case,  British-Vene- 
zuelan Commission,   1903,  Ralston's  Report,  442,  453.      Compare    Case  of 

644 


MARRIAGE  OF  ALIEN  WOMEN  TO  AMERICANS     [§  366 

also,  in  case  of  absence  from  the  United  States,  by  formal  elec- 
tion manifested  through  registration  with  a  consul,  is  believed 
to  be  a  wise  provision.^ 

(2) 

§  366.   Marriage  of  Alien  Women  to  American  Citizens. 
Reversion  of  Nationality. 

According  to  the  existing  law  of  the  United  States  :  "  any  woman 
who  is  now  or  may  hereafter  be  married  to  a  citizen  of  the  United 
States,  and  who  might  herself  be  lawfully  naturalized,  shall  be 
deemed  a  citizen."  '^  The  law  is,  moreover,  deemed  applicable 
to  a  woman  who  is  married  to  an  alien  who  later  himself  becomes 
naturalized.^ 

By  virtue  of  the  Act  of  March  2,  1907,  any  foreign  woman  who 
acquires  American  citizenship  by  marriage  to  an  American  shall 
be  assumed  to  retain  the  same  after  the  termination  of  the  marital 
relation  if  she  continue  to  reside  in  the  United  States,  unless  she 

Martha  M.  Calderwood,  No.  360,  American  and  British  Claims  Commis- 
sion, treaty  of  May  8,  1871,  Moore,  Arbitrations,  2485-2486;  also  comment 
on  this  and  other  cases  in  Hale's  Report,  17,  Moore,  Arbitrations,  III,  2486. 

1  Following  an  executive  order  of  April  6,  1907,  Mr.  Root,  Secy,  of  State, 
on  April  19,  1907,  issued  circular  instructions  to  American  diplomatic  and 
consular  officers  concerning  the  "Registration  of  Women  Who  Desire  to  Re- 
sume or  Retain  American  Citizenship",  announcing  a  form  of  registration  to 
be  used,  according  to  which  a  woman  is  obliged  to  make  affidavit  that  she 
is  "temporarily"  residing  abroad,  that  within  a  definite  period,  to  be  named 
by  herself,  she  intends  to  return  to  the  United  States,  with  the  intention 
also  of  there  residing  and  of  performing  the  duties  of  an  American  citizen. 
For.  Rel.  1907,  I,  10-13.  The  inquiry  suggests  itself  whether  the  foregoing 
requirements,  however  wise  in  respect  to  policy,  do  not  exceed  the  require- 
ments of  the  statute. 

2  Rev.  Stat.  §  1994.  Concerning  the  application  of  the  statute,  see  docu- 
ments cited  in  Moore,  Dig.,  Ill,  456-458 ;  also  Low  Wah  Suey  v.  Backus, 
225  U.  S.  460,  473-474 ;  In  re  Nicola,  184  Fed.  322 ;  Sprung  t-.  Morton,  182 
Fed.  330 ;  United  States  v.  Williams,  173  Fed.  626 ;  Opinion  of  Mr.  Wicker- 
sham,  Atty.-Gen.,  respecting  case  of  Nazara  Gossin,  28  Ops.  Attys.-Gen., 
504 ;  also  Persons  Capable  of  Naturalization  as  American  Citizens,  supra, 
§354. 

3  Kelly  V.  Owen,  7  Wall.  496;  Headman  v.  Rose,  63  Ga.  458;  Burton  v. 
Burton,  1  Keyes,  359 ;  all  cited  in  Moore,  Dig.,  Ill,  456.  See,  also.  Van  Dyne, 
Naturalization,  231-233. 

According  to  an  executive  order  by  President  Roosevelt,  of  April  6,  1907, 
"  Any  white  woman  or  woman  of  African  nativity  or  descent  or  Indian  wornan 
married  to  a  citizen  of  the  United  States  is  a  citizen  thereof ;  and  it  is  im- 
material whether  the  Ijusband  became  a  citizen  before  or  after  marriage." 
Dept.  of  State,  Circulars  Relating  to  Citizenship,  etc.,  1916,  p.  7. 

According  to  an  opinion  of  Mr.  Palmer,  Atty.-Gen.,  addressed  to  the  Secy, 
of  Labor,  May  8,  1920,  the  proviso  in  Section  19  of  the  Immigration  Act  of 
Feb.  5,  1917,  39  Stat.  889,  which  declares  that  the  marriage  of  an  immoral 
alien  female  to  an  American  citizen  shall  not  invest  such  female  with  citizen- 
ship, is  limited  to  marriages  of  immoral  alien  women  to  American  citizens 
which  are  solemnized  in  the  United  States. 

645 


§  366]  NATIONALITY 

makes  formal  renunciation  thereof  before  a  court  having  juris- 
diction to  naturalize  aliens,  or  if  she  resides  abroad  she  may 
retain  her  citizenship  by  registering  before  a  United  States 
consul  within  one  year  after  the  termination  of  such  marital 
relation.^  Consistently  with  the  principle  applied  to  the  con- 
verse situation,  the  termination  of  the  marital  relation  does  not 
itself  effect  a  change  of  nationality,  but  simply  leaves  the  woman 
free  to  follow  her  own  choice,  requiring  of  her  formal  election 
only  in  case  she  desires  to  renounce  or  not  resume,  as  the  case 
may  be,  the  nationality  of  the  State,  in  which  she  continues  to 
reside. 

g 

§  367.   Effect  of  Parents'  Naturalization  on  Infants. 

In  determining  what  effect  the  naturalization  of  the  parents 
should  have  upon  the  nationality  of  their  infant  children,  the 
United  States  has  heeded  two  principles,  the  disregard  of  either 
of  which  would  tend  to  produce  a  conflict  of  allegiance.^  The 
first  is  the  right  of  a  foreign  State  to  claim  the  allegiance  of  chil- 
dren born  to  its  own  nationals,  while  such  children  reside  within 
its  domain.  The  second  is  "that  it  is  not  within  the  power  of  a 
parent  to  eradicate  the  original  nationality  of  his  child,  though 
he  may,  during  the  minority  of  such  child,  invest  him  with  rights 
or  subject  him  to  duties  which  may  or  may  not  be  claimed  or  per- 
formed." ^  Hence  the  existing  law,  as  now  interpreted,  permits 
the  naturalization  of  the  parents  to  effect  that  of  the  child  solely 
on  the  following  conditions.^  The  latter  must  be  an  infant  at  the 
time  of  the  parents'  naturalization ;   its  citizenship  does  not  begin 

1  §  4,  34  Stat.  1229,  U.  S.  Comp.  Stat.  1918,  §3961.  Respecting  the 
operation  of  the  statute,  see  circular  instructions  of  Mr.  Root,  Secy,  of  State, 
to  American  diplomatic  and  consular  officers,  April  19,  1907,  For.  Rel.  1907, 
I,  10-13. 

2  Zartarian  v.  Billings,  204  U.  S.  170,  174,  175 ;  Van  Dyne,  Naturalization, 
202, 203. 

3  Mr.  Blaine,  Secv.  of  State,  to  Mr.  Phelps,  Minister  to  Germany,  Feb. 
1,  1890,  in  the  Case"of  Carl  Heisinger,  For.  Rel.  1890,  301,  Moore,  Dig.,  Ill, 
467. 

*  §  2172,  Rev.  Stat,  provides  that  "The  children  of  persons  who  have  been 
duly  naturalized  under  any  law  of  the  United  States  .  .  .  being  imder  the 
age  of  twenty-one  years  at  the  time  of  the  naturalization  of  their  parents, 
shall,  if  dwelling  in  the  United  States,  be  considered  as  citizens  thereof ;  and 
the  children  of  persons  who  now  are,  or  have  been,  citizens  of  the  United 
States,  shall,  though  born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  be  considered  as  citizens  thereof." 

§  5,  Act  of  March  2,  1907,  34  Stat.  1229,  U.  S.  Comp.  Stat.  1918,  §  3962, 
declares:  "That  a  child  born  without  the  United  States  of  alien  parents 
shall  be  deemed  a  citizen  of  the  United  States  by  virtue  of  the  naturalization 

646 


EFFECT  OF  PARENTS'  NATURALIZATION  ON  INFANTS    [§  367 

until  the  child  begins  to  reside  permanently  within  the  United 
States,  although  such  residence  may  commence,  if  during  infancy, 
after  the  naturalization  of  the  parents.^  Thus  a  foreign-born  alien 
child  cannot  gain  American  citizenship  by  a  temporary  sojourn 
in  the  United  States,  whether  at  the  time  of,  or  subsequent  to, 
the  naturalization  of  its  parents ;  ^  nor  can  it  do  so  if  it  fails 
to  begin  its  permanent  residence  in  the  United  States  during 
infancy.^ 

That  an  alien  child  may  be  naturalized  as  a  consequence  of  the 
naturalization  by  marriage  of  its  widowed  mother  to  an  American 
citizen,^  or  by  the  resumption  of  citizenship  by  the  mother  after 
the  termination  of  the  marital  relation  (as  in  the  case  of  a  woman 
who  had  relinquished  her  American  citizenship  by  marrying  a 
foreigner),  appears  to  be  clear .^  It  is  believed  that  the  Act  of 
March  2, 1907,  is  sufficiently  comprehensive  to  effect  the  naturali- 
zation of  an  illegitimate  alien  child  through  the  naturalization  of 
the  mother,  whether  by  marriage  or  otherwise.^ 

That  a  citizen  of  the  United  States  cannot,  by  adopting  a  child 

of  or  resumption  of  American  citizenship  by  the  parent ;  Provided,  That 
such  naturahzation  or  resumption  takes  place  during  the  minority  of  such 
child :  And  provided  further,  That  the  citizenship  of  such  minor  child  shall 
begin  at  the  time  such  minor  child  begins  to  reside  permanently  in  the  United 
States." 

^  Mr.  Hay,  Secy,  of  State,  to  Mr.  Harris,  Minister  to  Austria-Hungary, 
Jan.  22,  1900,  in  the  Case  of  Anton  Macek,  For.  Rel.  1900,  13-15,  Moore,  Dig., 
Ill,  470,  citing  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Phelps,  Minister  to 
Germany,  Feb.  1,  1890,  For.  Rel.  1890,  301 ;  Zartarian  v.  Billings,  204  U.  S. 
170,  decided  Jan.  7,  1907,  construing  §  2172,  Rev.  Stats.  Respecting  §  5  of 
the  Act  of  March  2,  1907,  see  United  States  v.  Rodgers,  185,  Fed.  334. 

See,  also,  Moore,  Dig.,  Ill,  464-472,  and  documents  there  cited ;  Van 
Dyne,  Naturahzation,  200-218. 

See  in  this  connection  Delaware,  L.  &  W.  R.  Co.  v.  Petrowsky,  250  Fed. 
554,5.58. 

2  As  to  the  law  in  this  regard,  prior  to  the  enactment  of  the  Act  of  March 
2,  1907,  see  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Kasson,  Minister  to 
Germany,  Jan.  15,  1885,  For.  Rel.  1885,  394,  395;  Van  Dyne,  Naturaliza- 
tion. 214-215. 

3  Case  of  Young  v.  Peck,  21  Wend.  389,  and  26  Wend.  613,  Van  Dyne, 
Naturalization,  201. 

*  Correspondence  with  Germany  respecting  the  Case  of  John  Haberacker, 
For.  Rel.  1891  and  1892,  Moore,  Dig.,  Ill,  473-483;  Mr.  Hay,  Secy  of 
State,  to  Mr.  Harris,  Minister  to  Austria-Hungary,  Jan.  22,  1900,  For.  Rel. 
1900,  13-15.  See,  also,  United  States  v.  Rodgers,  144  Fed.  711,  and  other 
cases  cited  in  Van  Dyne,  Naturalization,  220-223. 

*  The  Act  of  March  2,  1907,  §  5,  refers  expressly  to  the  "resumption  of 
American  citizenship  by  the  parent." 

*  Hence  it  is  believed  that  in  case  the  mother  were  naturalized  by  marriage, 
the  naturalization  of  the  child  would  not  be  dependent  upon  showing  that  the 
husband  of  the  mother  was  its  reputed  father,  or  in  case  he  was,  upon  es- 
tablishing that  marriage  served  to  legitimate  the  child  as  well  as  to  naturalize 
the  mother.  That  the  child  becomes  an  American  citizen  under  the  latter 
circumstances  according  to  §  2172,  Rev.  Stats.,  see  Van  Dyne,  Naturalization, 
223,  citing  Mr.  Hay,  Secy,  of  State,  to  Mr.  White,  March  3,  1899. 

647 


§  367]  NATIONALITY 

of  foreign  nationality,  confer  upon  it  American  citizenship  appears 
to  be  accepted  doctrine.^ 


Naturalization  Partially  Ineffective  as  to  Absent  Family 

§  368.   Application  to  Wives  and  Infant  Children. 

The  naturalization  of  an  alien  in  the  United  States  is  partially 
ineffective  as  to  his  absent  family.  Thus,  his  minor  children, 
until  they  begin  to  reside  permanently  in  the  United  States, 
under  circumstances  heretofore  observed,  undergo  no  change  of 
nationality.^ 

With  respect,  however,  to  his  absent  wife,  there  long  appears 
to  have  been  doubt  as  to  the  effect  of  the  naturalization  of  the 
husband.^  For  some  time  past  the  Department  of  State  has 
consistently  held  that  the  wife  gains  the  benefit  of  her  husband's 
naturalization  and  prior  to  her  entering  the  United  States.^ 

(2) 

§  369.    Good  Offices  for  Emigration. 

The  United  States  does  not  assert  any  right  of  interposition 
to  secure  the  emigration  from  the  State  of  origin  of  the  non- 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Rand,  Jan.  6,  1872,  92  MS.  Dom.  Let. 
142,  Moore,  Dig.,  IIL  484 ;  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Willis, 
M.  C,  Feb.  21,  1884,  150  MS.  Dom.  Let.  86,  Moore,  Dig.,  Ill,  484;  Mr. 
Adee,  Second  Assist.  Secv.  of  State,  to  Mr.  Goepel,  Sept.  13,  1888,  169  MS. 
Dom.  Let.  657,  Moore,  Dig.,  Ill,  485. 

That  a  child  born  of  Chinese  parents  in  China  cannot  be  permitted  to 
enter  the  United  States  as  an  American  citizen  because  of  its  adoption  by  a 
temporary  resident  of  China  who  is  a  citizen  of  the  L'nited  States,  see  For.  Rel. 
1906,  I,  288-290;  also  id.,  II,  1015. 

-  Effect  of  Parents'  NaturaUzation  on  Infants,  supra,  §  367. 

Mr.  Buchanan,  Secj-.  of  State,  to  Mr.  Rosset,  Nov.  25,  1845,  35  MS.  Dom. 
Let.  330,  Moore,  Dig.,  Ill,  487 ;  Mr.  Trescot,  Assist.  Secv.  of  State,  to  Mr. 
Capelle,  June  18,  1860,  52  MS.  Dom.  Let.  358,  Moore.  Dig'.,  Ill,  487. 

"This  rule  a  fortiori  appUes  to  other  relations,  such  as  that  of  mother  or 
sister."  Moore,  Dig.,  Ill,  487.  citing  Mr.  Olnev,  Secv.  of  State,  to  Mr. 
Torrev,  June  17,  1896,  210  MS.  Dom.  Let.  686 ;  Same  to  Mrs.  James,  July  18, 
1896,  211.  id.,  410. 

3  Mr.  Seward,  Secy,  of  State,  to  Mr.  TineUi,  April  1,  1868.  78  MS.  Dom. 
Let.  275,  Moore,  Dig..  III.  485 ;  Mr.  Foster,  Secv.  of  State,  to  Mr.  Thompson, 
Minister  to  Turkev,  Feb.  9.  1893,  For.  Rel.  1893,  598.  Moore,  Dig.,  Ill,  486; 
Mr.  Gresham.  Secv.  of  State,  to  Mr.  Watrous,  Jan.  23,  1895,  MS.  Dom.  Let. 
34S,  Moore,  Dig.,  Ill,  487.  See,  also.  Burton  v.  Burton,  26  How.  Pr.  474,  Van 
Dyne.  Naturalization,  234. 

*  For  the  statement  in  the  text  the  author  acknowledges  his  indebtedness 
to  Mr.  R.  W.  Flournov,  Jr. 

648 


AMERICAN    LAW  [§  370 

resident  alien  wife  or  children  of  a  naturalized  American  citizen.^ 
The  Department  of  State  has,  however,  frequently  instructed 
American  diplomatic  representatives  (especially  those  accredited 
to  Turkey),  to  exert  their  good  offices  on  proper  occasions,  to 
secure  permission  for  the  departure  of  such  persons  for  the  United 
States  upon  satisfactory  assurance  of  their  possession  of  funds 
sufficient  to  defray  the  expenses  of  the  journey .- 


1 

Impeachment  of  Naturalization 

(1) 
§  370.   American  Law. 

The  Act  of  June  29,  1906,  makes  apt  provision  for  the  impeach- 
ment of  naturalization  obtained  by  fraud. '^  To  that  end  three 
distinct  yet  coordinated  means  are  employed  : 

First,  the  duty  is  imposed  upon  the  United  States  district 
attorneys,    "upon    affidavit    showing   good    cause    therefor",    to 

1  Mr.  Wharton,  Acting  Secy,  of  State,  to  Mr.  Terzian,  May  14,  1891,  182 
MS.  Dom.  Let.  9,  Moore,  Dig^,  IH,  488. 

2  Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President,  Jan.  22,  1896,  For. 
Rel.  1895,  II,  1471-1473,  Moore,  Dig.,  Ill,  489;  Same  to  Same,  Dec.  7,  1896, 
id.,  1896,  Ixxxix,  Moore,  Dig.,  Ill,  491 ;  Mr.  Hay,  Secy,  of  State,  to  Mr. 
Straus,  Minister  to  Turkey,  Feb.  24,  1899,  MS.  Inst.  Turkey,  VII,  323,  Moore, 
Dig.,  Ill,  491 ;  also  other  documents  cited  in  Moore,  Dig., Ill,  488-492. 

Indicating  unwilHngness  to  solicit  permission  for  the  emigration  from 
Turkey  of  a  minor  brother,  see  Mr.  Moore.  Assist.  Secy,  of  State,  to  Mr. 
Greene,  May  14  and  May  24,  1898,  228  MS.  Dom.  Let.  486,  227,  id.,  589, 
Moore,  Dig.,  Ill,  490.  "Personal  good  offices  \vere  used  in  the  case  of  an 
intended  wife."  Moore,  Dig.,  Ill,  490,  citing  Mr.  Hay,  Secy,  of  State,  to 
Mr.  Straus,  Minister  to  Turkey,  Feb.  20,  1899,  MS.  Inst.  Turkey,  VII,  322. 

3  §  15,  34  Stat.  601,  U.  S.  Comp.  Stat.  1918,  §  4374.  Sustaining  the  con- 
stitutionality of  the  Act  of  June  29,  1906,  and  upholding  the  right  of  Congress 
to  authorize  direct  proceedings  to  attack  certificates  of  citizenship  on  the 
ground  of  fraud  and  illegaUty,  see  Johannessen  v.  United  States.  225  U.  S.  227. 

Concerning  the  practice  under  prior  laws,  see  Van  Dyne,  Naturahzation, 
138-141,  and  cases  cited. 

That  an  order  or  decree  cannot  be  impeached  collaterally,  see  Campbell  v. 
Gordon,  6  Cranch,  175 ;  Spratt  v.  Spratt,  4  Pet.  393,  and  other  cases  in  Moore, 
Dig.,  Ill,  499-501.  That  a  judgment  admitting  to  citizenship  one  who  is 
ineligible  therefor  may  be  regarded  as  yoid  or  attacked  collaterally,  see  In  re 
Yamashita,  30  Wash.  234 ;  In  re  Hong  Yen  Chang,  84  Cal.  163 ;  In  re  Gee 
Hop,  71  Fed.  274;  Opinion  of  McKenna,  Atty.-Gen.,  21  Ops.  Attys.-Gen., 
581,  all  cited  in  Moore,  Dig.,  Ill,  499  and  501. 

Proof  of  Naturalization.  Respecting  the  proof  of  naturalization  before 
American  Courts,  see  Van  Dyne,  Naturalization,  129-134,  and  cases  there 
cited ;  also  §  28,  and  par.  2,  §  15,  of  the  Act  of  June  29,  1906,  establishing  a 
Bureau  of  Naturalization,  34  Stat.  596.  Concerning  the  practice  of  the  De- 
partment of  State  where  a  person  seeks  to  establish  his  naturalization  by 
other  than  the  ordinary  proofs,  see  Moore,  Dig.,  Ill,  498-499,  and  documents 
there  cited. 

649 


§  370]  NATIONALITY 

institute  proceedings  for  the  purpose  of  setting  aside  and  cancel- 
ing certificates  of  citizenship  on  the  ground  of  fraud. ^ 

Secondly,  if  any  alien  who,  under  the  provisions  of  the  Act, 
secures  a  certificate  of  citizenship,  and  within  five  years  there- 
after goes  to  and  makes  his  permanent  residence  within  any  foreign 
country,  his  conduct  is  considered  prima  facie  evidence  of  a  lack 
of  intention  on  his  part  to  become  a  "permanent  citizen  of  the 
United  States"  when  he  filed  his  petition  for  citizenship,  and  in 
the  absence  of  countervailing  evidence  it  suffices  to  authorize 
the  cancellation  of  his  certificate  as  fraudulent.^ 

Thirdly,  it  is  made  the  duty  of  American  diplomatic  and  con- 
sular officers  to  furnish  the  Department  of  Justice  through  the 
Department  of  State,  with  the  names  of  persons  within  their 
respective  jurisdictions  w^ho  have  such  certificates  of  citizenship, 
and  who  have  taken  such  permanent  residence  abroad ;  and  such 
statements  when  duly  certified  are  made  admissible  in  proceedings 
to  cancel  certificates  of  citizenship.^ 

These  measures  appear  to  be  designed  also  to  lessen  the  danger 

1  Concerning  the  necessity  of  the  affidavit,  see  Van  Dyne,  138. 

=  Commenting  on  §  15  of  the  Act  of  June  29,  1906,  it  was  declared  by  Mr. 
Justice  Van  Devanter,  in  Luria  v.  United  States,  231  U.  S.  9,  23  :  "These  re- 
quirements phiinly  contemplated  that  the  appUcant,  if  admitted,  should  be  a 
citizen  in  fact  as  well  as  in  name  —  that  he  should  assume  and  bear  the  obliga- 
tions and  duties' of  that  status  as  well  as  enjoy  its  rights  and  privileges.  In 
other  words,  it  was  contemplated  that  his  admission  should  be  mutually  bene- 
ficial to  the  Government  and  himself,  the  proof  in  respect  of  his  established 
residence,  moral  character,  and  attachment  to  the  principles  of  the  Constitution 
being  exacted  because  of  what  they  promised  for  the  future,  rather  than  for 
what  they  told  of  the  past." 

See  United  States  v.  Wursterbarth,  249  Fed.  908,  where  the  respondent,  a  na- 
tive of  Germany,  had  been  admitted  to  citizenship  in  1882,  under  Rev.  Stat. 
§  2165,  requiring  an  applicant  for  admission  to  make  oath  that  he  would  sup- 
port the  Constitution  of  the  United  States,  and  that  he  absolutely  adjured 
and  renounced  all  allegiance  to  any  foreign  prince  or  sovereignty.  Proof  that 
when  the  United  States  and  Germany  engaged  in  war  in  1917,  the  respondent 
desired  the  success  of  Germany,  and  recognized  an  allegiance  to  Germany 
superior  to  that  due  to  the  United  States,  was  held,  while  unexplained,  to 
warrant  cancellation  of  his  certificate  of  citizenship  on  the  ground  that  it  was 
procured  by  fraud,  in  that  liis  oath  to  renounce  allegiance  to  any  foreign 
sovereignty  was  false,  and  excepted  the  land  of  his  nativit3\ 

See,  also,  United  States  v.  Swelgin,  2.54  Fed.  884,  where  in  a  suit  to  cancel 
a  certificate  of  naturalization  on  the  ground  that  at  the  time  the  holder  was 
naturalized  and  during  the  five-year  period  immediately  preceding,  he  was 
not  attached  to  the  principles  of  the  Constitution  of  the  United  States  or  well 
disposed  to  the  order  and  happiness  of  the  same,  and  that  he  had  been  and 
was  a  member  of  an  organization  commonly  called  the  I.  W.  W.,  the  evidence 
was  held  to  show  that  that  organization  advocated  anarchy  and  the  overthrow 
of  established  order,  and  to  warrant  the  annulment  of  the  certificate  of  naturali- 
zation, where  the  holder  of  it  admitted  adherence  to  the  principles  of  the  or- 
ganization. 

^  Circular  instructions  of  Mr.  Root,  Secy,  of  State,  to  American  diplomatic 
and  consular  officers,  April  19,  1907,  respecting  "Reports  of  Fraudulent 
Naturalization",  For.  Rel.  1907,  I,  9. 

650 


RULE    OF   INTERNATIONAL  ACTION  [§  371 

of  international  controversy  produced  by  the  acquisition  by  an 
alien  of  American  citizenship  for  the  sole  and  fraudulent  purpose 
of  enabling  him  to  resume  residence  in  the  State  of  his  origin, 
immune  from  common  burdens  imposed  upon  its  nationals. 

(2) 

§  371.   Rule  of  International  Action. 

The  Department  of  State  "possesses  no  power  to  vacate  de- 
crees of  naturalization ;  but  it  exercises,  under  the  direction  of 
the  President,  plenary  jurisdiction  over  the  conduct  of  foreign 
relations."  ^  In  so  doing,  the  Department  found  it  possible, 
prior  to  the  enactment  of  the  existing  statutory  law,  to  repudiate 
naturalization  which  had  been  improperly  obtained  in  the  United 
States. 

The  United  States,  whether  or  not  itself  a  party  to  the  natural- 
ization proceedings,^  cannot  with  reason  deny  the  right  of  a  foreign 
State,  not  a  party  thereto,  to  contest  the  validity  of  the  naturaliza- 
tion of  one  who  relies  upon  a  decree  obtained  by  fraud,  or  other- 
wise in  defiance  of  the  law.^  By  acting  accordingly,  the  Depart- 
ment of  State  does  not  attempt  to  denationalize  an  American 
citizen,  but  simply  declines  to  give  support  to  the  pretences  of 
him  who  claims  to  be  such.'^     It  does  not  necessarily  admit  that 

1  Statement  by  Prof.  Moore,  Dig.,  Ill,  501,  where  it  was  added :  "In  the 
exercise  of  this  jurisdiction,  the  Department,  as  has  often  been  held,  will,  so 
far  as  any  action  of  its  own  is  concerned,  treat  as  invalid  a  certificate  of  nat- 
uralization that  has  been  improperly  obtained. 

"The  grounds  on  which  the  Executive  so  acts  have  perhaps  never  been 
stated  more  concisely,  nor  yet  with  greater  clearness  and  profundity  of  reason- 
ing, than  by  the  Commander  Bertinatti,  as  umpire  of  the  Costa  Rican  Com- 
mission, 3  Moore,  Int.  Arbitrations,  2586-2589."     Id. 

Illustrative  of  the  practice  of  the  United  States,  see  Mr.  Fish,  Secy,  of 
State,  to  Mr.  Maynard,  Minister  to  Turkey,  No.  40,  Feb.  11,  1876,  MS.  Inst. 
Turkey,  III,  163,  Moore,  Dig.,  Ill,  503 ;  Mr.  Bayard,  Secy,  of  State,  to  Mr. 
Scruggs,  Minister  to  Colombia,  May  16,  1885,  For.  Rel.  1885,  211,  Moore, 
Dig.,  Ill,  510 ;  Same  to  Mr.  McLane,  Minister  to  France,  Dec.  8,  1888,  For. 
Rel.  1888,  I,  565,  Moore,  Dig.,  Ill,  511 ;  Mr.  Olney,  Secy,  of  State,  to  Clerk 
of  Common  Pleas,  New  York  City,  Jan.  13,  1897,  215  MS.  Dom.  Let.  202, 
Moore,  Dig.,  Ill,  512;  Mr.  Day,  Assist.  Secy,  of  State,  to  Mr.  Stewart, 
Nov.  11,  1897,  222  MS.  Dom.  Let.  359,  Moore,  Dig.,  Ill,  513. 

*  Through  §  11,  of  the  Act  of  June  29,  1906,  the  United  States  exercises 
the  right  to  appear  in  naturalization  proceedings,  and  to  oppose  the  granting 
of  any  petition. 

^  See,  in  this  connection,  Mr.  Evarts,  Secy,  of  State,  to  the  Spanish  Minister 
at  Washington,  March  4,  1880,  respecting  the  Case  of  Fernando  Dominguez, 
before  the  Spanish  Claims  Commission,  under  agreement  of  Feb.  11-12,  1871, 
Moore,  Arbitrations,  2599. 

*  Compare  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Durant,  American  Advocate 
for  the  United  States,  Nov.  30,  1881,  respecting  the  Case  of  Pedro  D.  Buzzi, 
before  the  Spanish  Claims  Commission,  under  agreement  of  Feb.  11-12,  1871, 
Moore,  Arbitrations,  2618. 

651 


§  371]  NATIONALITY 

the  United  States  is  without  power  to  naturalize  an  ahen  by  a 
process  other  than  that  prescribed  by  the  general  law ;  it  merely 
concedes  that  he  who  claims  the  benefit  of  that  law  must  not 
perpetrate  a  fraud  upon  it,  or  otherwise  hold  it  in  contempt.^ 

The  United  States  does  not,  however,  admit  the  right  of  a 
foreign  government  to  pass  judgment  on  the  validity  of  a  decree 
of  naturalization,  reserving  to  itself  the  right,  and  manifesting 
also  the  disposition,  in  all  proper  cases,  to  inquire  into  the  regu- 
larity of  a  judgment  that  is  open  to  impeachment.^ 

If  the  validity  of  the  naturalization  of  an  individual  claimant 
(or  of  one  through  whom  a  claim  is  derived)  is  challenged  in  a 
case  before  an  international  tribunal,  the  Department  of  State 
appears  to  recognize  the  reasonableness  both  of  the  right  of  contest 
and  of  the  decision  of  the  question  by  the  arbitral  court  .^  The 
consent  to  its  jurisdiction  is  believed  to  be  implied  from  the  agree- 
ment for  the  submission  of  claims.  Such  tribunals  have  not 
hesitated  to  impeach  certificates  of  naturalization  when  the  evi- 
dence warranted  such  action.^ 

^  Opinion  of  Commander  Bertinatti,  in  the  Medina  Case,  American-Costa 
Rican  Commission,  Convention  of  July  2,  1860,  Moore,  Arbitrations,  III,  2586. 

2  Mr.  Fish,  Secy,  of  State,  to  Mr.  Nelson,  Minister  to  Mexico,  Feb.  1,3, 
1872,  For.  Rel.  1872,  387,  Moore,  Dig.,  Ill,  513;  Mr.  Bayard,  Secy,  of  State, 
to  Mr.  Bluhdorn,  Aug.  21,  1888,  MS.  Notes  to  Austrian  Legation,  VIII,  575, 
Moore,  Dig.,  Ill,  514;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Tripp,  Minister 
to  Austria-Hungary,  Sept.  4,  1893,  For.  Rel.  1893,  23,  25,  Moore,  Dig.,  Ill, 
515. 

^  Instructions  of  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Suydam,  advo- 
cate for  the  United  States,  before  the  Spanish  Claims  Commission,  Feb.  25, 
1882,  in  which  it  was  declared:  "The  true  rule  t,o  govern  the  commission  is, 
that  when  an  allegation  of  naturalization  is  traversed  and  the  allegation  is 
established  prima  facie  by  the  production  of  a  certificate  of  naturalization,  or 
by  other  competent  and  sufficient  proof,  it  can  only  be  impeached  by  showing 
that  the  court  which  granted  it  was  without  jurisdiction,  or  by  showing,  in 
conformity  with  the  adjudications  of  the  courts  of  the  United  States  on  that 
topic,  that  fraud,  consisting  of  intentional  and  dishonest  misrepresentation 
or  suppression  of  material  facts  by  the  party  obtaining  the  judgment,  was 
practiced  upon  it,  or  that  the  naturalization  was  granted  in  violation  of  a 
treaty  stipulation  or  of  a  rule  of  international  law."  Moore,  Arbitrations, 
III,  2619,2620.  This  rule  was  accepted  by  the  commissioners  for  both  the 
United  States  and  Spain. 

Concerning  generally  the  question  before  the  Spanish  Claims  Commission, 
see  Moore,  Arbitrations,  2590-2621,  Moore,  Dig.,  Ill,  506-509.  Concerning 
the  Disposition  of  Fraudulent  Certificates,  Moore,  Dig.,  Ill,  516-518. 

With  respect  to  Crimes  and  Offenses  against  the  Naturalization  Laws  of 
the  L'nited  States,  see  Van  Dyne,  Naturalization,  189-194. 

4  Case  of  Medina,  United  States-Costa  Rican  Commission,  Convention  of  July 
2,  1860,  Moore,  Arbitrations,  III,  2583-2589 ;  Cases  before  Spanish  Claims 
Commission,  Agreement  of  Feb.  11-12,  1871,  id.,  2621-2647;  Cases  before 
French-American  Commission,  Convention  of  Jan.  15,  1880,  id.,  2647-2655; 
Flutie  Cases  before  American-Venezuelan  Commission,  1903,  Ralston's  Re- 
port, 38. 

See,  also,  Case  of  Rita  L.  Ruiz,  before  Spanish  Treaty  Claims  Commission, 
under  Act  of  Congress,  March  3,  1901,  37,  published  also  in  Van  Dyne,  Nat- 

652 


ITS  SIGNIFICANCE  [§  372 

5 
DOUBLE   ALLEGIANCE 

a 

§  372.   Its  Significance. 

That  a  child  may  at  birth  become  the  object  of  a  double  claim 
of  allegiance  is  the  natural  consequence  of  the  fact  that  States 
may  without  impropriety  rely  upon  either  the  jus  sanguinis  or  the 
jus  soli  as  the  source  of  national  character,  and  the  necessary 
result  whenever  a  State,  such  as  the  United  States,  bases  its  laws 
upon  both  principles..^  Nevertheless,  this  very  reliance  upon 
both  aids  in  the  solution  of  the  conflict  by  necessarily  imputing 
to  such  State  respect  for  the  nature  of  the  claim  of  that  other 
within  whose  territory  the  child  happens  to  be.^  The  latter  is 
able  to  exact  allegiance  from  him  so  long  as  he  is  deemed  incapable 
of  making  any  choice,  and  remains  within  its  control.  The  power 
of  the  territorial  sovereign  and  the  incapacity  of  the  child  com- 
bine to  fortify  the  claim. 

When,  however,  the  child  attains  his  majority,  emigrates  to  a 
foreign  country,  acquires  by  naturalization  its  nationality,  and 
returns  to  the  State  of  his  origin,  it  will  be  seen  that,  according 
to  the  view  of  the  United  States,  the  doctrine  of  double  allegiance 
is  not  applicable.  Naturalization  by  the  adult,  capable  of  making 
a  choice,  is  regarded  as  impressing  upon  him  a  new  and  solitary 
national  character,  entitled  to  general  respect  until  he  expatriates 
himself.^ 

uralization,  144,  in  which  it  was  held  that  the  Commission,  although  estab- 
lished by  Act  of  Congress,  was  sitting  as  an  international  tribunal,  and  as  such 
was  empowered  to  impeach  for  cause  an  American  certificate  of  naturaUzation. 

1  Mr.  Lansing,  Secy,  of  State  ad  interim,  to  Senator  H.  C.  Lodge,  June  9, 
1915,  American  White  Book,  European  War,  II,  149 ;  Department  of  State, 
Circulars  Relating  to  Citizenship,  etc.,  1916,  p.  75.  See,  generally,  Moore, 
Dig.,  Ill,  518-519;  Oppenheim,  2  ed.,  383-386;  Westlake,  2  ed.,  I,  221-225. 

•'  Opinion  of  Mr.  Hoar,  Attv.-Gen.,  13  Ops.  Attvs.-Gen.,  89,  91,  Moore, 
Dig.,  Ill,  519;  Report  of  Mr.  Fish,  Secv.  of  State,  to  the  President,  Aug.  25, 
1873,  For.  Rel.  1873,  II,  1186,  1191-1192,  Moore,  Dig.,  Ill,  519;  see,  also, 
Westlake,  2  ed.,  I,  223.  See,  also,  Mr.  Wilson,  Acting  Secy,  of  State,  to  Mr. 
Pierrepont,  Charge  at  Santiago,  Aug.  3,  1910,  For.  Rel.  1910,  195. 

Obviously  a  State  cannot  justly  exact  allegiance  of  a  resident  not  born 
within  its  territorj'  and  the  child  of  aUen  parents ;  for  such  an  attempt  would 
defy  the  principle'that  claims  of  allegiance,  in  order  to  be  just,  must  be  derived 
from  recognized  sources.  Herein  is  illustrated  the  fact  that  the  propriety 
of  the  action  of  the  individual  State  in  respect  to  nationality,  as  in  all  other 
matters,  finds  its  ultimate  test  in  an  international  rather  than  a  domestic 
standard,  and  in  one  manifest  in  the  practice  of  enlightened  States. 

3  Declares  Professor  Moore:  "It  is  sometimes  stated  that  a  double  al- 
legiance also  exists  where  a  person  born  in  one  country  after^yards  emigrates 
to  and  becomes  a  citizen  of  another  country.  That  a  person  in  such  a  situa- 
tion may  be  subject  to  the  claims  of  allegiance  in  two  countries,  is  in  point  of 

653 


§  373]  NATIONALITY 

b 

The  Attitude  of  the  United  States 

(1) 

\/§  373.   Foreign-born  Children. 

Children  born  outside  of  the  Hmits  of  the  United  States  Vho 
are  citizens  thereof  by  virtue  of  section  1993  Revised  Statutes/  and 
who  continue  to  reside  outside  of  the  United  States,  are  deemed 
by  the  Department  of  State  to  be  entitled  to  passports  during 
minority."  Recognizing  the  impropriety  of  interference  with 
the  allegiance  which  such  children  owe  to  the  country  of  birth 
which  regards  them  as  nationals,  the  United  States  formerly 
issued  passports  qualified  with  the  statement  that  the  rights  of 
the  holders  were  svibject  to  the  rights,  obligations  and  duties 
which  might  attach  to  them  in  the  State  of  birth  and  of  continued 
residence.^ 

According  to  the  Act  of  IMarch  2,  1907,  such  persons,  in  order 
to  receive  the  protection  of  the  United  States,  are  required,  upon 
reaching  the  age  of  eighteen  years,  to  record  at  an  American 
Consulate  their  intention  to  become  residents  and  remain  citizens 
of  the  United  States,  and  are  further  required  to  take  the  oath 

fact  no  doubt  true;  but  it  is  in  point  of  principle  equally  true  that,  when 
writers  place  such  a  case  under  the  head  of  double  allegiance,  they  at  least 
impliedly  hold  that  the  doctrine  of  voluntary  expatriation,  as  maintained  by 
the  United  States,  is  not  well  founded.  From  the  point  of  view  of  the  doctrine 
of  expatriation,  as  enunciated  by  the  United  States,  the  man  who,  voluntarily 
forsaking  his  original  home  and  allegiance,  acquires  a  new  one,  has  thereafter 
but  one  allegiance  —  that  of  his  adopted  countrv."  Dig.,  Ill,  518-519.  See, 
also,  the  Right  of  Expatriation,  infra,  §§  376-378. 

1  §  1993  provides  that  "All  children  heretofore  born  or  hereafter  born  out 
of  the  limits  and  jurisdiction  of  the  United  States,  whose  fathers  were  or  may 
be  at  the  time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of  the 
United  States ;  but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States." 

2  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Combs,  No.  71,  Sept.  15,  1903, 
For.  Rel.  1903,  595,  Moore,  Dig.,  Ill,  525. 

'  See  excellent  statement  of  Mr.  Bavard.  Secy,  of  State,  to  Mr.  Vignaud, 
Charge  at  Paris,  July  2,  1886,  For.  Rel.'  1886,  30.3,  304,  referring  to  opinion  of 
Mr.  Hoar,  Atty.-Gen.,  13  Ops.  Attys.-Gen.,  89,  Moore,  Dig.,  Ill,  529;  Mr. 
Frelinghuysen,  Secy,  of  State,  to  Mr.  Kasson,  Minister  to  Germany,  Jan.  15, 
1885,  For.  Rel.  1885,  396,  398,  Moore,  Dig.,  III.  530;  Mr.  Olnev,  Secy,  of 
State,  to  Mr.  Strobel,  Minister  to  Chile,  June  4,  1896,  For.  Rel.  1896,  34-35, 
Moore,  Dig.,  Ill,  526. 

Obviously  where  such  a  conflict  does  not  arise  under  the  legislation  of  the 
foreign  State,  no  reason  other  than  what  may  be  app.arent  from  the  domestic 
law  of  the  United  States  exists  for  the  withholding  of  protection  in  the  country 
of  birth.  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Coombs,  Minister  to  Japan, 
April  28,  1893,  For.  Rel.  1893,  401,  Moore,  Dig.,  Ill,  530. 

It  should  be  noted  that  qualified  passports  have  not  been  issued  for  many 
years. 

654 


FOREIGN-BORN  CHILDREN  [§  373 

of  allegiance  to  the  United  States  upon  attaining  their  majority.^ 
It  may  be  doubted  whether  bare  compliance  by  the  foreign-born 
child  with  either  or  both  of  the  foregoing  requirements  would 
justify  the  United  States  in  attempting  to  shield  him  from  burdens 
of  citizenship  w^hich  might  be  imposed  by  the  country  of  birth ; 
for  such  conduct  on  his  part,  while  he  remained  within  its  terri- 
tory, could  not  reasonably  deprive  that  State  of  the  right  to  exact 
allegiance  of  him  as  a  consequence  of  his  birth  within  its  terri- 
tory." The  international  value  of  an  election  of  American  na- 
tionality by  one  having  capacity  to  elect,  is  believed  to  depend 
upon  actual  removal  to  the  United  States.^ 

It  is  not  unreasonable  for  the  State  of  origin  to  declare  that  a 
child  of  its  own  citizens  born  wuthin  its  own  territory,  who  is 
naturalized  abroad  in  consequence  of  the  parents'  naturaliza- 
tion, is,  nevertheless,  not  deprived  of  his  nationality  of  origin 
if  he  during  minority  returns  to  its  domain.  Under  such  circum- 
stances it  is  believed  that  the  duty  of  that  State  to  respect  the 

1  §  6,  34  Stat.  1229,  U.  S.  Comp.  Stat.  1918,  §  3963.  See  circular  instruc- 
tions of  Mr.  Root,  Secv.  of  State,  to  American  Diplomatic  and  Consular  Of- 
ficers, April  19,  1907,  For.  Rel.  1907,  I,  9. 

According  to  a  notice  to  American  Diplomatic  and  Consular  Officers, 
Mar.  14,  1911,  it  was  declared  by  Mr.  Wilson,  5Vcting  Secy,  of  State,  that  the 
Department  of  State  had  decided  that  the  declarations  of  "intention  to  be- 
come residents  and  remain  citizens  of  the  United  States"  required  by  the 
statute  had  reference  to  the  right  of  protection  rather  than  citizenship  under 
the  municipal  law,  and  that  "such  declarations  may  be  made  at  any  time  after 
the  minors  concerned  have  reached  the  age  of  eighteen  years  and  before  they 
take  the  oath  of  allegiance  to  the  United  States ;  not  necessarily  before  they 
reach  the  age  of  nineteen  years."     For.  Rel.  1911,  2. 

See,  also,  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Kerens,  Ambassador  to 
Austria-Hungary,  Oct.  7,  1910,  respecting  the  citizenship  of  R.  Warren-Lippit, 
For.  Rel.  1910,  76. 

-  The  purpose  of  the  statute  was  to  prescribe  circumstances  when  foreign- 
born  children  should  cease  to  have  the  right  to  invoke  the  protection  of  the 
United  States,  rather  than  to  assert  conditions  when  they  should  be  protected 
by  the  United  States  against  claims  of  allegiance  made  by  the  State  of  birth 
and  of  continued  residence. 

The  fact  of  election,  as  prescribed  by  the  statute,  may  serve  by  virtue  of 
the  law  of  the  State  of  birth  and  residence  (as  in  France)  to  produce  relinquish- 
ment by  it  of  its  claim  of  allegiance.  In  such  case  compliance  with  the  Act 
of  Congress  is  efficacious  only  so  far  as  it  results  in  compliance  also  with  the 
foreign  law.  See  Mr.  Vignaud,  Charge  at  Paris,  to  Mr.  Bayard,  Secv.  of 
State,  June  15,  1886,  For.  Rel.  1886,  301,  Moore,  Dig.,  Ill,  528.  Corn-pare  the 
situation  in  Russia,  indicated  in  a  communication  of  Mr.  Adee,  Acting  Secy, 
of  State,  to  Mr.  Coombs,  Minister  to  Japan,  April  28,  1893,  For.  Rel.  1893, 
401,  Moore,  Dig.,  Ill,  530. 

3  Mr.  Bavard,  Secv.  of  State,  to  Mr.  McLane,  Minister  to  France,  Feb.  15, 
1888,  For.  Rel.  1888,  I,  510,  511,  Moore,  Dig.,  Ill,  548;  Same  to  Mr.  Vignaud, 
Charge  at  Paris,  July  2,  1886,  For.  Rel.  1886,  303,  304,  Moore,  Dig.,  Ill,  546; 
Mr.  Hav,  Secv.  of  State,  to  Mr.  White,  Ambassador  to  Germanv,  No.  959, 
Nov.  4, "1899,  MS.  Inst.  Germany,  XXI,  104,  Moore.  Dig.,  III.  551. 

See,  in  this  connection.  Ex  parte  Gilroy,  257  Fed.  110,  126 ;  also  Native-born 
Children,  infra,  §  374. 

655 


§  373]  NATIONALITY 

naturalization  of  the  parents  fails  to  include  the  duty  to  heed 
also  that  of  the  child.  Thus  a  foreign-born  child  naturalized  in 
the  United  States  in  consequence  of  the  naturalization  of  its 
parents,  upon  returning  during  minority  to  the  State  of  origin 
may  be  regarded  (while  within  its  territory)  as  a  national  thereof, 
and  subject  to  the  performance  of  obligations  incidental  to  alle- 
giance, from  which  the  United  States  should  not  endeavor  to 
shield  him.^  It  will  be  observed  that  the  Act  of  Congress  cloth- 
ing such  an  individual  with  American  citizenship  by  virtue  of  the 
naturalization  of  his  parents  is  conditioned  upon  the  child's 
"beginning  to  reside  permanently  in  the  United  States."  ^ 

(2) 
§  374.   Native-born  Children. 

Children  born  to  foreign  parents  in  the  United  States,  and  who 
are  American  citizens  within  the  meaning  of  the  Fourteenth 
Amendment  to  the  Constitution,  if  taken  to  the  country  of  the 
parents'  nationality,  are  deemed  to  be  entitled  to  passports 
during  minority.^  The  Department  of  State  does  not,  however, 
endeavor  to  protect  the  child  from  the  burdens  of  allegiance  im- 
posed by  that  State,  in  case  its  laws  regard  him  as  a  national  by 
virtue  of  the  jus  sanguinis} 

1  The  United  States  might  possibly  exercise  its  good  offices  in  behalf  of  such 
an  individual  if  he  entered  the  domain  of  a  foreign  State  as  a  transient  visitor 
not  contemplating  an  extended  sojourn  therein. 

See  Case  of  Ren6  Dubuc,  For.  Rel.  1910,  514-516. 

The  Department  of  State  has  maintained  that  the  naturalization,  by  virtue 
of  the  statutory  laws  of  the  United  States,  of  a  child  of  Portuguese  birth,  in 
consequence  of  the  naturalization  of  the  parents  in  the  United  States,  attaches 
to  such  child  an  American  nationality  which  should  be  respected  by  Portugal 
by  reason  of  Art.  I  of  its  naturalization  convention  with  the  United  States  of 
May  8,  1908,  which  provides  that  subjects  of  Portugal  who  become  naturalized 
citizens  of  the  United  States  and  shall  have  there  resided  uninterruptedly  for 
five  years  shall  be  held  bj'^  Portugal  to  be  American  citizens  and  shall  be  treated 
as  such.  Mr.  Knox,  Secy,  of  State,  to  Mr.  Bryan,  Minister  to  Portugal, 
Jan.  12,  1910,  telegram,  in  the  Case  of  Antonio  S.  Nunes,  where  it  is  also  stated 
that  "similar  construction  has  been  put  upon  provisions  in  our  naturalization 
treaties  with  other  countries."     For.  Rel.  1910,  832. 

2  §  5,  Act  of  March  2,  1907,  34  Stats.  1229.  Also  Effect  of  Parents' 
Naturalization  on  Infants,  supra,  §  367. 

^  Fourteenth  Amendment,  Section  1. 

*  Mr.  Frelinghuvsen,  Secy,  of  State,  to  Mr.  O'Neill,  M.  C,  Aug.  8,  1882, 
143  MS.  Dom.  Let.  270,  Moore,  Dig.,  Ill,  532;  Mr.  Blaine,  Secv.  of  State, 
to  Mr.  Phelps,  Minister  to  Germany,  May  3,  1892,  For.  Rel.  1892,  189,  Moore, 
Dig.,  Ill,  533;  Mr.  Bacon,  Acting  Secv.  of  State,  to  Mr.  Tower,  Ambassador 
to  Germany,  March  8,  1907,  For.  Rel.' 1907,  L  516. 

Compare  the  divergent  rulings  in  Case  of  R.  J.  J.  Pinto  and  other  cases  in 
1899  and  1901,  For.  Rel.  1899,  588-589;  id.,  760.  762;  id.,  1901,  532. 

When  a  child,  born  in  the  United  States  to  parents  previously  naturalized 
therein,  is  taken  during  minority  to  the  territory  of  the  State  of  the  parents' 

656 


NATIVE-BORN    CHILDREN  [§  374 

A  passport  has  been  denied  when  sought  for  the  protection  of  a 
minor  born  in  the  United  States,  whose  parents  proposed  to  return 
with  him  "for  a  brief  period"  to  the  country  of  which  they  were 
subjects.^  The  Department  has,  at  least  on  one  occasion,  how- 
ever, encouraged  the  use  of  the  good  offices  of  an  American  diplo- 
matic officer  to  protect  an  American-born  minor  from  military 
service  in  the  State  of  the  parents'  nationality,  when  it  appeared 
that  the  father's  domicile  had  been  in  the  United  States  ever  since 
the  birth  of  the  son,  and  that  the  latter  was  only  temporarih' 
within  the  domain  of  the  State  w^hich  regarded  him  as  a  national.'- 
It  is  not  believed  that  the  United  States  would  to-day  assert  that 
the  American  domicile  or  residence  of  either  parent  or  child 
lessens  the  strict  right  of  the  foreign  State  to  exact  allegiance 
from  the  latter ;  for  the  presence  of  the  minor  within  its  domain 
justifies  the  claim  so  long  as  it  is  derived  from  a  recognized  source. 

The  Department  of  State  has  held,  that  the  child,  upon  attain- 
ing his  majority,  must  elect  between  the  nationality  which  is  his 
by  birth,  and  that  which  is  his  by  parentage  ;  and  that  election  of 
American  nationality  is  effective  by  the  manifestation  of  an  in- 
tention in  good  faith  to  return  to  the  United  States  with  all  con- 
venient speed  and  there  to  assume  duties  of  citizenship.^  While 
such  action  may  enable  the  declarant  to  invoke  successfully 
the  protection  of  the  United  States  in  case  no  opposing  claim 
is  made  by  the  State  of  residence,  it  has  been  repeatedly  held 
that  the  mode  of  expressing  election  is  to  return  to  the  United 
States,  the  evidence  of  election  being  to  place  oneself  in  the  terri- 
tory of  that  country  which  is  elected."*     The  effect  of  election  so 

origin,  a  different  situation  arises.  In  such  case  the  contention  is  justified 
that  the  acquisition  by  the  parents  of  American  nationahty  which  gave  them 
a  new  and  single  national  character,  served  also  to  cut  off  the  right  of  their 
former  sovereign  to  claim  allegiance  of  a  child  subsequently  born  outside  of 
it 5  domain  and  later  permitted  to  enter  it.  The  United  States  could  not  ad- 
mit the  validity  of  such  a  claim,  or  the  invocation  of  the  doctrine  of  dual  al- 
legiance in  support  of  it.  See  the  facts  in  the  Case  of  Ugo  Da  Prato,  mentioned 
in  a  communication  of  Mr.  Lansing,  Secy,  of  State  ad  interim,  to  Senator  H.  C. 
Lodgo.  June  9,  1915,  American  White  Book,  European  War,  II,  149. 

1  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Seely,  March  9,  1893,  190  MS.  Dom. 
Let.  553,  Moore,  Dig.,  Ill,  533. 

^  Mr.  Bayard,  Secv.  of  State,  to  Mr.  McLane,  Minister  to  France,  concern- 
ing the  Case  of  A.  F.  Gendrot,  Dec.  28,  1887,  For.  Rel.  1888,  I,  498,  Moore, 
Dig.,  Ill,  537.  See,  also,  other  documents  concerning  the  same  case  in  Moore, 
Dig.,  Ill,  537-539. 

■^  See  memorandum  of  the  law  officer  of  the  Department  of  State,  enclosed 
in  a  communication  of  Mr.  Bacon,  Acting  Secv.  of  State,  to  the  German  Am- 
bassador, Nov.  20,  1906,  For.  Rel.  1906,  I,  656,  657. 

*  Mr.  Bavard,  Secy,  of  State,  to  Mr.  McLane,  Minister  to  France,  Feb.  15, 
1888,  For.  Rel.  1888.  I,  510;  also  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr. 
Tripp,  Minister  at  Vienna,  July  23,  1895,  For.  Rel.  1895,  I,  20-22,  Moore, 

657 


§  374]  NATIONALITY 

manifested  is  believed  to  be  not  unlike  that  produced  by  naturaliza- 
tion in  destroying  the  right  of  the  foreign  State  to  claim  allegiance, 
because  the  action  of  the  individual  in  relation  to  the  State  of 
birth  renders  thereafter  unreasonable  the  assertion  of  the  claim 
derived  from  the  nationality  of  the  parents.  Hence,  after  such 
election  and  domicile  in  the  United  States,  the  Department  of 
State  is  disposed  to  protect  the  individual  as  an  American  citizen 
upon  his  return  as  a  transient  visitor  to  the  domain  of  the  former 
State.^ 

(3) 

§  375.   Effect  of  Change  of  Parents'  American  Nationality, 

The  American-born  child  of  a  naturalized  American  citizen  who 
upon  returning  to  the  State  of  his  origin  resumes  his  former  alle- 
giance, is  regarded  by  the  United  States  as  reasonably  subject  to 
the  allegiance  of  such  State,  provided  the  child  is  within  its  domain, 
and  is  claimed  as  a  national  pursuant  to  the  local  law.  Such  child 
is,  nevertheless,  deemed  to  possess  the  right  to  elect  American 
citizenship   by   the   usual   mode,   upon   attaining  his   majority .'- 

Dig..  Ill,  549-550;  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  Tower,  Am- 
bassador to  Germany,  March  S,  1907,  For.  Rel.  1907,  I,  516. 

1  As  to  the  time  within  which  election  should  be  made,  see  documents  cited 
in  Moore,  Dig.,  Ill,  550-551;   also  For.  Rel.  1906,  I,  657,  id.,  II,  1180. 

See,  also.  Case  of  Frank  Ghiloni,  in  American  Wliite  Book,  European  War, 
III,  373-387,  Avhere  the  Department  of  State  undertook  to  protect  from  mili- 
tary service  a  man  who  had  been  born  in  Massachusetts  in  1885,  his  father 
being  an  Italian  subject  who  obtained  naturalization  as  an  American  citizen 
the  follow^ing  year.  The  son  was  taken  to  Italy  when  two  years  of  age,  re- 
turning to  the  United  States  in  1897,  when  about  twelve  years  of  age.  He 
resided  continuously  in  the  United  States  until  June,  1914,  when  he  went  to 
Italy  for  his  health,  he  then  being  twenty-nine  years  of  age.  During  that 
visit  The  World  War  broke  out,  and  he  was  impressed  into  service  in  the 
Italian  Army  as  an  Italian  subject.  In  seeking  to  effect  his  release  Secretary 
Lansing  declared,  July  20,  1915,  id.,  375:  "It  is  considered  by  this  Govern- 
ment that  the  principle  of  election  of  nationality  should  be  recognized  in  cases 
of  persons  born  with  dual  nationality,  whether  or  not  the  municipal  laws  of  the 
countries  concerned  prescribe  definite  modes  of  election.  This  Government 
has  no  desire  to  intervene  in  cases  of  persons  who  were  born  in  the  Laiited 
States  of  Italian  parents  but  were  domiciled  there,  and  have  evidently  elected 
Italian  nationality."  The  Italian  Government  declined  to  accede  to  the 
request.  The  man  was  subsequently  taken  prisoner  by  the  Austro-Hun- 
gajian  forces.     The  Department  of  State  demanded  and  obtained  his  release. 

2  The  statement  in  the  text  does  not  purport  to  define  or  describe  acts 
fairly  to  be  deemed  to  constitute  a  resumption  of  former  allegiance  by  the 
father.  See,  in  this  connection,  correspondence  with  the  German  Foreign 
Office  in  1884-1885,  For.  Rel.  1885,  393-411,  414-416,  and  summary  thereof 
in  Moore,  Dig.,  Ill,  748-749.  Compare  vieAvs  of  Mr.  Pierrepont,  Atty.-Gen., 
in  Steinkauler's  Case,  15  Ops.  Attys.-Gen.,  15,  Moore,  Dig.,  Ill,  539,  concern- 
ing Art.  IV  of  the  treaty  with  North  Germany  of  1868. 

"If  the  father  .  .  .  did  in  fact  renounce  liis  American  citizenship  and  re- 
sume his  original  allegiance,  in  a  manner  recognized  by  the  laws  of  his  native 
country,  that  fact  would  operate  as  a  renunciation  of  the  adopted  citizenship 

658 


RELATION  TO  NATURALIZATION  [§  376 

It  is  believed  that  the  same  respect  should  be  accorded  the  claim 
of  the  foreign  territorial  sovereign,  where  the  parents  are  American- 
born,  and  duly  change  their  nationality. 

However  much  the  change  of  the  nationality  of  the  parents 
may  depend  upon  their  domicile  or  residence  within  the  foreign 
State,  it  may  be  doubted  whether  any  rule  of  general  acceptation 
makes  the  claim  to  the  child,  as  a  consequence  of  the  parents' 
naturalization,  dependent  also  upon  its  domicile  or  residence.^ 
The  Department  of  State,  in  declaring  that  the  child  partakes 
of  the  father's  domicile,  has  apparently  regarded  that  fact  as  im- 
portant in  justifying  the  claim  of  the  foreign  State.^  Hence 
doubt  has  been  expressed  as  to  the  correctness  of  the  position  of 
such  a  State  in  a  case  where  the  right  of  an  alien  widowed  mother 
to  change  the  legal  home  of  her  American-born  child  domiciled  in 
the  United  States  was  also  questioned.^ 


6 
THE   RIGHT   OF   EXPATRIATION 

a 

§  376.   Relation  to  Naturalization. 

The  word  expatriation  is  here  used  to  describe  the  conduct 
of  one  who  permanently  leaves  the  territory  of  the  State  of  which 
he  is  a  national  and  voluntarily  renounces  allegiance  to  its  sov- 
ereign. As  such  conduct  is  almost  invariably  characterized  by  the 
attempt  to  acquire  the  nationality  of  another  State  to  which  the 
individual  has  emigrated  and  in  which  he  has  made  his  home, 
expatriation  is  closely  associated  with  the  transfer  as  well  as  the 

for  his  minor  children,  at  least  while  they  remain  within  the  jurisdiction  which 
their  father  reacknowledged."  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr. 
Kasson,  Minister  to  Germany,  Jan.  15,  18S5,  For.  Rel.  1885,  396,  397,  Moore, 
Dig.,  Ill,  540. 

See,  also,  Mr.  Bayard,  Secy,  of  State,  to  Mr.  de  Weckherlin,  April  7,  1888, 
For.  Rel.  1888,  II,  1341,  Moore,  Dig.,  Ill,  542;  Mr.  Olney,  Secy,  of  State,  to 
Mr.  Materne,  May  29,  1896,  210  MS.  Dom.  Let.  406,  Moore,  Dig.,  Ill,  542. 

1  In  the  converse  situation,  §  5  of  the  Act  of  March  2,  1907,  34  Stat.  1229, 
compels  the  alien  child,  as  has  been  noted,  to  begin  to  reside  permanently  in  the 
United  States,  in  order  to  enjoy  the  benefits  of  the  father's  naturalization. 
Effect  of  Parents'  Naturalization  on  Infants,  supra,  §307. 

2  Mr.  Porter,  Acting  Secy,  of  State,  to  Mr.  Winchester,  Minister  to  Switzer- 
land, Sept.  14,  1885,  For.  Rel.  1885,  811,  Moore,  Dig.,  Ill,  541;  Mr.  Bayard, 
Secy,  of  State,  to  Mr.  de  Weckherlin,  April  7,  1888,  For.  Bel.  1888,  II,  1341, 
Moore,  Dig.,  Ill,  542. 

3  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Liebermann,  July  9,  1886,  160  MS. 
Dom.  Let.  667,  Moore,  Dig.,  Ill,  541. 

659 


§  376]  NATIONALITY 

abandonment  of  allegiance.^  In  a  strict  sense,  however,  expatria- 
tion refers  to  the  conduct  solely  of  the  individual,  while  naturaliza- 
tion refers  to  that  of  the  State  of  adoption  as  well  as  of  the  man. 
For  that  reason  the  inquiry  as  to  the  existence  or  scope  of  his 
right  to  terminate  at  will  his  political  relationship  to  his  own 
country  is  distinct  from  that  as  to  whether  naturalization  serves 
in  itself  to  produce  such  a  result.  It  is,  however,  the  effect  of  the 
endeavor  of  the  State  to  impress  its  national  character  upon  the 
person  who  is  naturalized  that  has  been  the  subject  of  inter- 
national controversy.  Herein  has  the  question  of  expatriation 
become  important  to  the  United  States. 


§  377.   Relation  to  Emigration. 

While  in  a  descriptive  sense  the  word  expatriation  doubtless 
embraces  the  idea  of  emigration  as  well  as  of  abandonment  of 
allegiance,  the  question  arises  whether  any  right  of  expatriation 
asserted  in  behalf  of  the  individual  possesses  likewise  this  two- 
fold character.  One  reason  which  may  have  retarded  acceptance 
in  the  United  States  of  the  theory  that  the  individual  may  at  will 
free  himself  from  the  duty  of  allegiance  towards  his  sovereign 
was  a  consciousness  that  the  right  of  a  man  to  leave  his  own 
country,  as  his  right  to  commit  any  other  act  within  a  place 
subject  to  its  control,  depends  upon  the  will  of  the  State,  and 
that  no  act  committed  within  its  territory  can  be  reasonably  re- 
garded as  lawful  which  the  sovereign  thereof  itself  forbids.^  If, 
therefore,  the  right  of  expatriation  necessarily  embraced  the  right 
to  emigrate  as  well  as  to  abandon  or  transfer  allegiance,  it  rested 
in  part  upon  a  fiction,  for  it  necessarily  denied  the  supremacy 
of  the  foreign  territorial  sovereign  within  its  own  domain.^ 

^  "Expatriation  is  the  voluntary  renunciation  or  abandonment  of  nation- 
ality and  allegiance."  Van  Dvne,  Naturalization,  333.  See,  also,  §§  2  and 
3,  Act  of  March  2,  1907,  34  Stat.  122S. 

2  See,  for  example,  Mr.  Everett,  Secv.  of  State,  to  Mr.  Barnard,  Minister 
to  Prussia,  Jan.  14,  1S53,  S.  Ex.  Doc.  "38,  36  Cong..  1  Sess.,  53,  54,  Moore, 
Dig.,  Ill,  567;  also  Opinion  of  Mr.  Gushing,  Atty.-Gen.,  Oct.  31,  18.56,  in 
which  it  was  declared:  "The  assumption  of  a  natural  right  of  emigration, 
without  possible  restriction  in  law,  can  be  defended  only  by  maintaining  that 
each  individual  has  all  possible  rights  against  the  society,  and  the  society  none 
with  respect  to  the  individual ;  that  there  is  no  social  organization,  but  a  mere 
anarchy  of  elements,  each  wholly  independent  of  the  other,  and  not  otherwise 
consociated  save  than  by  their  casual  co-existence  in  the  same  territorv. 
[Ahrens,  Droit  Naturel,  p.' 324.]"  8  Ops.  Attvs.-Gen.,  139,  163,  Moore,  Dig., 
III.  .570,  571. 

3  It  mav  be  doubted,  therefore,  whether  the  assertion  of  Attorney-General 
Black  in  his  opinion  respecting  the  Case  of  Christian  Ernst,  in  1859,  that  the 

660 


RELATION    TO    EMIGRATION  [§  377 

As  a  matter  of  fact,  the  United  States  has  not  concerned  itself 
with  inquiries  respecting  the  lawfulness  of  the  emigration  of  the 
applicant  for  its  citizenship.  That  citizenship  has  been  within 
the  reach  of  him  who,  regardless  of  the  propriety  of  his  previous 
conduct  in  relation  to  emigration,  has,  within  the  United  States, 
complied  with  its  naturalization  laws.^  Stripped,  therefore, 
of  impedimenta  relating  to  emigration,  and  confined  to  the  legal 
aspect  of  the  attempt  to  dissolve  the  tie  of  allegiance  to  one 
sovereign  by  naturalization  within  the  territory  of  another,  the 
right  of  expatriation,  whatever  it  may  be,  is  freed  from  an  un- 
stable prop,  and  entitled  to  intelligent  support.  While  the 
United  States  has  oftentimes  intimated  that  the  right  of  expatria- 
tion embraces  the  right  also  to  emigrate,^  it  has,  in  the  convention 
with  Portugal  of  May  7,  1908,  acknowledged  the  right  of  the 
country  of  origin  to  make  legal  provisions  for  the  regulation  of 
emigration,  and  to  punish  those  who  transgressed  the  same  upon 
their  return  to  its  territory.^ 

right  of  expatriation  possessed  this  twofold  aspect,  added  weight  to  the  argu- 
ment which  he  ably  sought  to  advance.  It  was  there  declared  to  be  the 
"natural  right  of  every  free  person,  who  owes  no  debts  and  is  not  guilty  of 
any  crime,  to  leave  the  country  of  his  birth  in  good  faith  and  for  an  honest 
purpose."  9  Ops.  Attys.-Gren..  356,  357,  Moore,  Dig.,  Ill,  573.  See  also 
Mr.  Seward,  Secv.  of  State,  to  Mr.  Marsh,  Minister  to  Italy,  July  15,  1868. 
MS.  Inst.  Italy,  j,  269,  Moore,  Dig.,  Ill,  608. 

1  The  naturaUzation  laws  of  the  United  States  make  no  reference  to  the 
matter. 

2  Opinion  of  Mr.  Black,  Atty.-Gen.,  9  Ops.  Attvs.-Gen.,  356,  Moore,  Dig., 
III.  573  ;  Mr.  Cass,  Secy,  of  State,  to  Mr.  Wright,  Minister  to  Prussia,  Mav  12, 
1859,  MS.  Inst.  Prussia,  XIV,  274,  Moore,  Dig.,  Ill,  572;  Mr.  Seward,  Secy, 
of  State,  to  Mr.  Johnson,  Minister  to  Great  Britain,  Julv  20,  1868,  Dip.  Cor. 
1868,  I,  328,  329,  Moore,  Dig..  Ill,  581. 

^  After  declaring  in  Art.  II  that  the  recognized  citizen  of  the  one  party  on 
returning  to  the  territory  of  the  country  of  origin  shall  not  be  punishable  for 
the  act  of  emigration  itself,  it  Ls  provided  that  "the  infraction  of  the  legal 
provisions  which  in  the  country  of  origin  regulate  emigration  shall  not  be  held, 
for  the  purposes  of  this  Article,  as  pertaining  to  the  emigration  itself  and, 
therefore,  the  transgressors  of  those  provisions  who  return  to  the  country  of 
their  origin  are  there  liable  to  trial  on  account  of  any  and  whatever  responsi- 
bility thev  may  have  incurred  through  such  infraction.'  Malloy's  Treaties, 
II,  1468.  ■ 

Declared  Mr.  Bayard,  Secy,  of  State,  in  a  communication  to  IMr.  Lothrop, 
Minister  to  Russia,  Feb.  18,  1887,  "The  Department  is  far  from  questioning 
the  right  of  His  Imperial  Majesty  to  refuse  to  permit  his  subjects  to  emigrate. 
This  is  an  incident  of  territorial  sovereignty  recognized  by  the  law  of  nations, 
but  can  only  be  exercised  within  the  territory  of  Russia.  .  .  .  His  Im- 
perial Majesty  may  '  prevent '  Russians  from  coming  to  the  United  States,  but 
when  they  have  come,  and  have  acquired  American  citizenship,  they  are  en- 
titled to  the  privileges  conferred  bv  the  Article  [10  of  the  treatv  of  commerce 
of  Dec.  18,  1832]."  For.  Rel.  1887,  948,  Moore,  Dig.,  Ill,  633.  The  fore- 
going language  was  used  in  connection  with  the  case  of  one  Adolph  Lipszye, 
a  naturalized  American  citizen  of  Russian  origin,  subjected  to  punishment  upon 
his  return  to  Russia.  " His  sole  offense "  was  "his  naturalization  in  the  United 
States  without  the  consent  of  Russia."     Mr.  Bayard  contended  that  under 

661 


§  378]  NATIONALITY 


§  378.   Development  of  the  Doctrine  in  the  United  States. 

Tliat  the  alien  who  came  to  the  United  States,  and  there  made 
his  abode,  possessed  the  right  by  any  process  to  dissolve  the  exist- 
ing tie  of  allegiance  binding  him  to  the  country  of  his  origin  was 
not  the  accepted  view  in  the  early  days  of  the  Republic.  The 
common-law  doctrine  which  denied  the  individual  such  a  right 
found  support  in  the  views  of  publicists  and  judges.^  Doubt 
was,  moreover,  expressed  as  to  the  effect  of  naturalization. 

It  was  frequently  suggested  by  the  political  department  of 
the  Government  that  the  naturalized  American  citizen  acquired 
a  character  not  necessarily  entitled  to  recognition  by  the  country 
of  origin,  and  which  did  not,  upon  his  return  to  its  domain,  justify 
the  United  States  in  making  the  endeavor  to  protect  him  as  its 
national.^  The  doctrine  of  dual  allegiance  thus  became  as  readily 
applied  to  the  adult  naturalized  American  citizen  as  to  a  minor 
child  born  within  the  United  States,  but  subjected  by  virtue  of 
the  jus  sanguinis  to  duties  of  allegiance  towards  the  State  of  the 
father's  nationality  in  the  territory  of  which  the  child  happened 
to  be ;  for  the  right  to  treat  the  adult  as  a  national  was  regarded 
as  dependent  upon  the  power  to  exact  allegiance  from  him,  rather 
than  upon  a  new  political  status  conferred  upon  him  by  the  State 
of  adoption. 

It  was  Mr.  James  Buchanan  who,  in  1845,  was  the  first  Secretary 
of  State  to  announce  the  principle  that  naturalization  put  an  end 
to  any  tie  of  former  allegiance,  and  that  the  naturalized  American 

the  treaty  of  commerce  of  1832,  American  citizenship  had  been  acquired  with 
the  assent  of  Russia,  and  that  Lipszj^c  could  "not  be  tried  for  an  emigration 
which,  when  followed  by  naturalization  in  the  United  States,  Russia  herself 
recognizes  as  conferring  citizenship  of  the  United  States."  The  withdrawal 
of  the  penal  action  "based  exclusively  on  that  emigration"  was  urgently 
sought.  See,  also,  further  concerning  this  case,  For.  Rel.  1887,  959-960,  id., 
961,  Moore,  Dig.,  Ill,  637-643. 

1  J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  Chap.  VII;  also 
documents  cited  in  Moore,  Dig.,  Ill,  552,  among  which  are  2  Kent's  Comm. 
49 ;  3  Story's  Constitution,  3,  note  2 ;  Inglis  v.  Trustees  of  Sailor's  Snug 
Harbour,  3  Pet.  99 ;  Shanks  v.  Dupont,  3  Pet.  242,  246 ;  The  Santissima 
Trinidad,  7  Wheat.  283 ;  and  contra,  Alsberry  ;.'.  Hawkins,  9  Dana  (Ky.),  178. 
See,  also,  Moore,  Dig.,  Ill,  554-562,  and  cases  there  cited  and  quoted. 

With  respect  to  the  relation  of  Expatriation  to  the  question  of  Impressment 
see  Moore,  Dig.,  Ill,  563,  citing  Am.  State  Pap.,  For.  Rel.,  Ill,  630,  Adams' 
Hist,  of  the  United  States,  II,  332-339. 

2  Mr.  Marshall,  Secy,  of  State,  to  Mr.  Humphreys,  Sept.  23  1800,  Moore, 
Arbitrations,  II,  1001,  Moore,  Dig.,  Ill,  562;  Mr.  Webster,  Secv.  of  State,  to 
Mr.  Bryan,  March  21,  1843,  33  MS.  Dom.  Let.  117,  Moore,  Dig.,  Ill,  565; 
also  Mr.  Wheaton,  Minister  to  Prussia,  to  Mr.  Knoche,  July  24,  1840,  enclosed 
with  Mr.  Wheaton's  No.  157,  to  Mr.  Forsyth,  Secy,  of  State,  July  29,  1840, 
S.  Ex.  Doc.  38,  36  Cong.,  1  Sess.,  6,  7,  Moore,  Dig.,  Ill,  564. 

662 


THE    AMERICAN    DOCTRINE  [§  378 

citizen  was,  therefore,  entitled  to  complete  recognition  as  such 
by  the  country  of  his  origin.^  It  was  not,  however,  until  after 
Mr.  Buchanan  became  President  that  this  view  was  the  accepted 
position  of  the  Department  of  State,^  and  not  until  1868  that  it 
was  embodied  in  the  statutory  law  of  the  United  States.^  That 
law  did  not  define  the  right  of  expatriation.  Its  purpose  was  to 
make  clear  the  doctrine,  first,  that  the  right  of  an  alien  to  change 
his  nationality  was  not  dependent  upon  the  consent  of  his  sov- 
ereign beyond  whose  control  he  had  placed  himself;    secondly, 

1  Communication  to  Mr.  Rosset,  Nov.  2.5,  1845,  35  MS.  Dom.  Let.  330, 
Moore,  Dig.,  Ill,  566;  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Bancroft, 
Minister  to  Great  Britain,  Oct.  28,  1848,  Brit,  and  For.  State  Pap.,  XLVII, 
1236,  1237,  Moore,  Dig.,  Ill,  566  ;  Same  to  Same,  Dec.  18,  1848,  Brit,  and  For. 
State  Pap.,  XLVII,  1241,  Moore,  Dig.,  Ill,  566. 

"A  comprehensive  examination  of  our  unpublished  diplomatic  records 
enables  me  to  say  that  the  First  Secretary  of  State  to  announce  the  doctrine 
of  expatriation  in  its  fullest  extent  —  the  doctrine  that  naturalization  in  the 
LTnited  States  not  only  clothes  the  individual  with  new  allegiance  but  also 
absolves  him  from  the  obligations  of  the  old  —  was  James  Buchanan."  J.  B. 
Moore,  Principles  of  American  Diplomacy,  1918,  276. 

2  Thus,  for  example,  Mr.  Everett,  Secy,  of  State,  to  Mr.  Barnard,  Minister 
to  Prussia,  Jan.  14,  1853,  S.  Ex.  Doc.  38,  36  Cong.,  1  Sess.,  53-54,  Moore,  Dig., 
Ill,  567;  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Daniel,  Minister  to  Sardinia, 
Nov.  10,  1855,  MS.  Inst.  Italy,  I,  88,  Moore,  Dig.,  Ill,  569;  Mr.  Cushing, 
Atty.-Gen.,  8  Ops.  Attys.-Gen.,  139,  Moore,  Dig.,  Ill,  570.  President 
Buchanan's  views  found  expression  in  the  Case  of  Christian  Ernst,  and  were 
communicated  by  Mr.  Cass,  Secy,  of  State,  to  Mr.  Wright,  Minister  to  Prussia, 
July  8,  1859,  S.  Ex.  Doc.  38,  36  Cong.,  1  Sess.,  132,  Moore,  Dig.,  Ill,  574. 

Concerning  the  course  of  the  United  States  during  the  Civil  War,  see  docu- 
ments in  Moore,  Dig.,  Ill,  577-579. 

3  The  Act  of  July  27,  1868,  15  Stat.  223,  as  embodied  in  Rev.  Stats. 
§§  1999,  2000,  2001,  is  as  follows:  "Whereas  the  right  of  expatriation  is  a 
natural  and  inherent  right  of  all  people,  indispensable  to  the  enjoyment  of  the 
rights  of  life,  liberty,  and  the  pursuit  of  happiness ;  and  whereas  in  the  recogni- 
tion of  this  principle  this  Government  has  freely  received  emigrants  frorn  all 
nations,  and  invested  them  with  the  rights  of  citizenship ;  and  whereas  it  is 
claimed  that  such  American  citizens,  with  their  descendants,  are  subjects 
of  foreign  States,  owing  allegiance  to  the  governments  thereof;  and  whereas 
it  is  necessary  to  the  maintenance  of  public  peace  that  this  claim  of  foreign 
allegiance  should  be  promptly  and  fin.ally  disavowed :  Therefore, 

"Any  declaration,  instruction,  opinion,  order,  or  decision  of  any  officer  of 
the  United  States  which  denies,  restricts,  impairs,  or  questions  the  right  of 
expatriation,  is  hereby  declared  inconsistent  with  the  fundamental  principles 
of  the  Republic. 

"All  naturalized  citizens  of  the  United  States,  while  in  foreign  countries, 
are  entitled  to,  and  shall  receive  from  this  Government,  the  same  protection 
of  persons  and  property  which  is  accorded  to  native-born  citizens. 

"Whenever  it  is  made  known  to  the  President  that  any  citizen  of  the  United 
States  has  been  unjustly  deprived  of  his  liberty  by  or  under  the  authority 
of  any  foreign  government,  it  shall  be  the  duty  of  the  President  forthwith 
to  demand  of  that  government  the  reasons  of  such  imprisonment ;  and  if  it 
appears  to  be  wrongful  and  in  violation  of  the  rights  of  American  citizenship, 
the  President  shall  forthwith  demand  the  release  of  such  citizen,  and  if  the 
release  so  demanded  is  unreasonably  delayed  or  refused,  the  President  shall 
use  such  means,  not  amounting  to  acts  of  war,  as  he  may  think  necessary 
and  proper  to  obtain  or  effectuate  such  release ;  and  all  the  facts  and  pro- 
ceedings relative  thereto  shall  as  soon  as  practical  be  communicated  by  the 
President  to  Congress." 

663 


§  378]  NATIONALITY 

that  naturalization  within  the  United  States  served  to  dissolve 
the  tie  of  allegiance  with  respect  to  that  sovereign;  and  thirdly, 
that  by  such  process  the  individual  acquired  a  new  national  char- 
acter entitled  to  recognition  upon  his  return  to  the  country  of 
origin.^ 


§  379.    Significance  of  the  Existing  Law. 

It  is  not  believed  to  be  inconsistent  with  this  doctrine  for  the 
State  of  origin  to  punish  the  naturalized  American  citizen,  upon 
his  return  to  its  territory,  for  emigrating  in  disobedience  to  its 
command  and  contrary  to  its  laws;  for  in  so  doing  that  State 
does  not  necessarily  deny  the  validity  of  naturalization,  but  merely 
inflicts  a  penalty  upon  one  who  transgressed  the  local  law  when 
within  its  territory  and  while  also  a  national.^ 

In  calling  upon  the  State  of  origin,  in  spite  of  Its  domestic 
laws  forbidding  renunciation  of  allegiance  without  governmental 
consent,  to  accord  complete  recognition  to  the  American  naturaliza- 
tion of  a  former  national  who  has  disobeyed  its  commands,  the 
United  States  is  not  believed  to  take  an  unreasonable  position. 
Such  an  individual  has  voluntarily  and  unequivocally  renounced 
allegiance  to  his  former  sovereign,  he  has  made  his  residence  for  a 
period  of  years  on  American  soil,  and  he  has  sworn  allegiance  to 
the  State  of  his  adoption.  The  United  States  has  clothed  him, 
therefore,  with  its  nationality  under  circumstances  when  it  has  be- 
come reasonable  for  it  as  a  sovereign  to  establish  a  bond  between 
itself  and  the  individual,  not  only  more  intimate  than  can  exist 

^  Respecting  the  circumstances  leading  to  the  enactment  of  the  Act  of 
July  27,  1868,  see  Moore,  Dig.,  Ill,  579-581,  and  documents  there  cited. 
Respecting  the  cases  of  Warren  and  Costello,  naturalized  American  citizens 
of  British  origin,  arrested  in  Dublin  in  1867,  see  Dip.  Cor.  1866, 1. 

^  The  United  States  deplores  with  reason  the  policy  of  foreign  States  whose 
statutory  laws  render  emigration  without  governmental  consent  illegal 
and  provide  penalties  for  the  violation  thereof;  and  it  wisely  endeavors  to 
incorporate  in  naturalization  conventions  of  the  present  day  a  provision  that 
the  naturalized  citizen  shall  not,  upon  returning  to  the  State  of  origin,  be 
punished  for  the  act  of  emigration.  See,  for  example.  Art.  IV  Convention 
with  Brazil,  April  27,  1908,  Charles'  Treaties,  20.  It  may  be  doubted,  how- 
ever, whether  in  dealing  with  States  steadfastly  opposed  to  relaxing  control 
of  emigration,  objection  by  the  United  States  to  the  punishment  of  the  nat- 
uralized American  citizen  for  the  act  of  illegal  emigration  serves  to  encourage 
recognition  of  the  new  national  character  which  such  an  individual  may  be 
justly  deemed  to  possess.  It  is  beUeved  that  the  readiness  of  certain  Euro- 
pean States  to  attach  to  American  naturalization  the  consequences  which 
the  United  States  claims  for  it,  may  prove  to  be  proportional  to  the  disposi- 
tion on  its  part  to  confine  the  issue  to  one  respecting  solely  the  right  of  the 
State  of  adoption  to  impress  a  new  political  status  upon  him  who  has  come 
within  its  territory  and  there  made  his  home. 

664 


SIGNIFICANCE    OF    THE    EXISTING    LAW         [§  379 

between  himself  and  any  other,  but  also  one  which  is  inconsistent 
with  the  continuance  of  a  similar  relationship  between  himself 
and  any  other.  Through  the  process  of  naturalization  the 
United  States,  therefore,  justly  asserts  that  it  both  dissolves  the 
political  relation  of  the  individual  to  his  former  sovereign,  and 
simultaneously  impresses  upon  him  a  new  national  character  en- 
titled to  general  recognition.^  This  principle  is  necessarily  at 
variance  with  the  theory  of  dual  allegiance ;  for  it  cannot  be  ad- 
mitted that  the  political  status  conferred  by  naturalization  is 
consistent  with  the  existence  of  any  other,  or  that  until  it  is  dis- 
solved by  some  reasonable  process  it  may  be  disregarded  at  will 
by  the  State  of  origin.^ 

Although  the  United  States  may  find  itself  unable  to  prevent 
a  foreign  State  from  withholding  recognition  of  American  natural- 
ization when  obtained  in  defiance  of  its  laws  forbidding  the  attempt 

*  From  the  principles  of  Conflict  of  Laws  as  applied  in  the  United  States 
and  England  an  analogy  suggests  itself.  The  civil  status  or  artificial  condi- 
tion attached  to  a  man  may  be  dissolved  by  a  State  other  than  that  which 
conferred  or  imposed  it.  Thus  if  he  be  a  slave,  the  State  to  which  he  removes 
and  in  which  he  makes  a  new  legal  home,  may  not  only  decline  to  recognize 
his  status,  but  also  proceed  formally  to  destroy  it.  In  a  word,  the  State  which 
becomes  the  new  domicile  habitually  dissolves  for  cause  the  status  previously 
attached  to  the  individual  by  the  law  of  his  former  home,  and  furnishes  the 
proper  law  for  him  to  invoke  in  order  to  accomplish  such  an  end.  The  rea- 
sonableness of  this  assertion  of  sovereign  power  is,  moreover,  recognized, 
when  the  individual  resumes  his  home  in  the  State  to  which  he  formerly 
belonged.  His  former  status  is  deemed  to  have  been  destroyed,  and  the  im- 
position or  conferring  of  a  new  and  similar  one  is  believed  to  require  affirma- 
tive action. 

2  "The  doctrine  embodied  in  the  Act  of  1868  is  that  naturalization  in- 
vests the  individual  with  a  new  and  single  allegiance,  and  by  consequence 
absolves  him  from  the  obligations  of  the  old.  The  position  of  governments 
and  of  pubUcists  who  deny  the  American  contention  is  that  naturalization 
merely  adds  a  new  allegiance  to  the  old,  so  that  the  individual  becomes  sub- 
ject to  a  dual  allegiance,  and  may  be  held  to  all  the  obligations  of  his  original 
citizenship  if  he  returns  to  his  native  country.  The  doctrine  of  dual  alle- 
giance is,  in  a  word,  the  precise  test,  the  acceptance  of  which  distinguishes 
those  who  reject  the  doctrine  of  voluntary  expatriation  from  those  who  sup- 
port it."  J.  B.  Moore,  Principles  of  American  Diplomacy,  1918,  p.  294.  In 
the  light  of  this  statement  see  President  McKinley,  Annual  Message,  Dec. 
5,  1899,  For.  Rel.  1899,  xxxi,  Moore,  Dig.,  Ill,  586;  also  Mr.  Hay,  Secy, 
of  State,  to  Mr.  Garabedyan,  Feb.  19,  1900,  For.  Rel.  1900,  938,  Moore,  Dig., 
III.  689,  same  to  Mr.  Combs,  Minister  to  Guatemala,  No.  30,  April  18,  1903, 
For.  Rel.  1903,  584,  Moore,  Dig.,  Ill,  608. 

"The  cases  of  persons  born  in  the  United  States  of  alien  parents  should 
not  be  confused  with  the  cases  of  persons  born  abroad  who  have  obtained 
naturalization  as  citizens  of  this  country.  In  the  former  cases  the  Department 
recognizes  now,  as  it  always  has  heretofore,  that  the  persons  concerned  are  born 
with  a  dual  nationality.  In  the  latter  cases  the  Department  does  not  rec- 
ognize the  existence  of  dual  nationality  in  view  of  the  fact  that  persons  who 
obtain  naturalization  as  citizens  of  this  country  are  required  to  renounce  their 
original  allegiance."  Mr.  Lansing,  Secy,  of  State  ad  interim,  to  Senator  H.  C. 
Lodge,  concerning  the  Case  of  Ugo  Da  Prato,  June  9,  1915,  American  White 
Book,  European  War,  II,  149,  151. 

665 


§  379]  NATIONALITY 

to  transfer  allegiance,  it  is  always  possible  to  emphasize  the  fact 
that  the  foreign  law  which  embodies  the  command  and  penalizes 
disobedience  is  arbitrary,  not  only  because  it  ignores  the  true 
significance  of  naturalization,  but  also  on  account  of  the  paucity 
of  enlightened  States  which  at  the  present  time  pursue  such  a 
course. 


Difficulties  with   Certain  Foreign   States 

(1) 

§  380.   Respecting  Recognition  of  Naturalization. 

The  return  of  the  naturalized  American  citizen  to  the  terri- 
tory of  the  State  of  his  origin,  itself  not  a  party  to  a  naturaliza- 
tion convention  with  the  United  States,  has  heretofore  oftentimes 
given  rise  to  controversy  respecting  either  the  recognition  of  his 
expatriation  or  the  imposition  upon  him  of  burdens  not  neces- 
sarily inconsistent  with  the  change  of  his  national  character. 

The  lack  of  the  consent  of  the  former  sovereign  has,  in  the  case 
of  a  few  States,  served  to  bar  recognition  of  American  naturaliza- 
tion. Thus  France  has  been  unwilling  to  respect  the  change  of 
allegiance  of  a  French  citizen  until  certain  specified  grades  of 
military  service  were  rendered,  or  until  the  individual  reached  an 
age  after  which  such  service  was  not  required.^  Russia,  under 
the  Romanoffs,  asserted  "  the  extreme  right  to  punish  a  naturalized 
Russian  on  return  to  his  native  jurisdiction,  not  merely  for  un- 
authorized emigration,  but  also  specifically  for  the  unpermitted 
acquisition  of  a  foreign  citizenship."  ^  Turke\^  also  refused  to 
recognize  the  new  political  status  of  a  Turkish  subject  naturalized 

1  "By  the  terms  of  Article  17  of  the  Civil  Code,  if  a  Frenchman  is  still  sub- 
ject to  the  obligations  of  military  service  in  the  active  army,  naturaUzation 
abroad  will  not  cause  him  to  lose  the  quality  of  Frenchman  unless  it  was 
authorized  by  the  French  government."  Mr.  Delcasse,  Minister  of  Foreign 
Affairs,  to  Mr.  Vignaud,  American  Charge,  Oct.  31,  1901,  For.  Rel.  1901, 
157,  Moore,  Dig.,  Ill,  599.  See,  also,  Mr.  Vignaud,  Charge  d'Affaires  ad  in- 
terim, to  Mr.  Sherman,  Secy,  of  State,  Aug.  2, 1897,  For.  Rel.  1897, 141,  Moore, 
Dig.,  Ill,  599;  Circular  Notice,  Dept.  of  State,  Jan.  21,  1901,  For.  Rel.  1901, 
153,  Moore,  Dig.,  Ill,  602 ;  other  documents  cited  id.,  Ill,  588-603. 

See,  in  this  connection,  Dept.  of  State,  Circular  of  Aug.  2,  1915,  Circulars 
Relating  to  Citizenship,  1916,  p.  66. 

Also  position  of  Serbia  indicated  in  Circular,  Department  of  State,  Aug.  2, 
1915,  id.,  p.  73. 

2  Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President,  Dec.  7,  1896,  For. 
Rel.  1896,lxxix,  Moore,  Dig.,  Ill,  652.  Also  Mr.  Hay,  Secy,  of  State,  to  Mr. 
Belmont,  Jan.  25,  1900,  242  MS.  Dom.  Let.  391,  Moore,  Dig.,  Ill,  655 ;  other 
documents,  id..  Ill,  622-656 ;  Dept.  of  State,  Circular  of  Jan.  9,  1914,  Cir- 
culars Relating  to  Citizenship,  1916,  p.  72. 

666 


RESPECTING  RECOGNITION  OF  NATURALIZATION     [§  380 

abroad  without  imperial  consent.^  While  the  Department  of 
State  has  not  questioned  the  right  of  Ottoman  authorities  to  expel 
from  Turkish  soil  naturalized  American  citizens  of  Turkish  origin 
shown  to  have  been  concerned  in  movements  against  the  Turkish 
Government,  it  has  been  declared  that  the  United  States  cannot 
and  will  not  acknowledge  that  such  citizens  may  be  fairly  sub- 
jected to  punishment  when  in  Ottoman  territory  simply  because 
they  have  become  previously  invested  with  American  citizenship 
without  Turkish  consent.^ 

Switzerland,  acting  on  the  principle  that  every  Swiss  conserves 
his  citizenship  as  long  as  he  does  not  renounce  it  himself,  and  as 
long  as  he  can  prove  his  descent,  has  not  regarded  naturalization 
as  necessarily  producing  a  change  of  political  status ;  and  has 
made  its  recognition  of  the  loss  of  Swiss  nationality  dependent 
upon  a  formal  and  express  renunciation  of  allegiance  in  Switzer- 
land and  in  the  manner  prescribed  by  its  law.^  Without  com- 
pliance with  these  conditions  Swiss  nationality  has  been  deemed 

1  Declared  Mr.  Hay,  in  a  communication  to  Mr.  Garabedyan,  Feb.  19, 
1900 :  "The  United  States  controverts  this  position,  but  unavailingly."  For. 
Rel.  1900,  938,  Moore,  Dig.,  Ill,  689.  Also  Mr.  Bayard,  Secy,  of  State,  to 
Mr.  Cox,  Minister  to  Turkey,  Nov.  28,  1885,  For.  Rel.  1885,  885,  Moore, 
Dig.,  Ill,  682,  also  other  documents,  id.,  Ill,  679-696 ;  Department  of  State, 
Circular  of  Feb.  29,  1912,  Circular  Relating  to  Citizenship,  1916,  75. 

2  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Hirsch,  Minister  to  Turkey,  No.  147, 
Jan.  14,  1891,  MS.  Inst.  Turkey,  V,  196,  Moore,  Dig.,  Ill,  696;  President 
Cleveland,  Annual  Message,  Dec.  3,  1894,  For.  Rel.  1894,  xv,  Moore,  Dig., 
Ill,  701 ;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Terrell,  Minister  to  Turkey, 
March  29,  1894,  For.  Rel.  1894,  754,  755-756,  Moore,  Dig.,  Ill,  701 ;  other 
documents,  id.,  Ill,  696-707. 

In  a  Circular  of  Feb.  29,  1912,  it  was  announced  that  "The  Department  of 
State  holds  that  a  naturalized  American  citizen  of  Turkish  origin  who  returns 
to  his  native  country  as  an  Ottoman  subject,  concealing  the  fact  of  his  nat- 
uralization in  order  to  evade  the  Ottoman  law  mentioned  [forbidding  the  nat- 
uralization of  Turkish  subjects  without  the  consent  of  the  Turkish  Government], 
thereby  so  far  relinquishes  the  rights  conferred  upon  him  by  his  American  nat- 
uralization as  to  absolve  this  Government  from  the  obligation  to  protect  him 
as  a  citizen  while  he  remains  in  his  native  land."  Circulars  Relating  to 
Citizenship,  1916,  p.  75. 

3  Moore,  Dig.,  Ill,  658-678,  and  documents  there  cited,  especially  Mr. 
Peak,  Minister  to  Switzerland,  to  Mr.  Olney,  Secy,  of  State,  Feb.  3,  1897, 
For.  Rel.  1897,  557,  inclosing  translation  of  an  extract  from  the  Handbuch 
des  Schiveizerischen-Bimdesstaatrechts,  by  Dr.  J.  J.  Blumer,  Vol.  I,  page  330 ; 
also  Circular  Notice,  Department  of  State,  Jan.  8,  1901,  For.  Rel.  1901,  499. 

It  is  not  understood  that  the  purpose  or  operation  of  the  law  serves  to 
prevent  the  renunciation  of  allegiance  by  the  Swiss  who  complies  with  its 
provisions,  or  to  make  his  right  to  expatriate  himself  dependent  solely  upon 
the  consent  of  his  commune.  Such  an  individual  is  not  forced  to  keep  his 
Swiss  citizenship  against  his  will.  See  The  Swiss  Federal  Council  to  Mr. 
Peak,  American  Minister,  April  20,  1897,  For.  Rel.  1897,  564,  Moore,  Dig., 
Ill,  666 ;  The  President  of  the  Swiss  Confederation  to  Mr.  Peak,  American 
Minister,  Jan.  22,  1897,  For.  Rel.  1897,  560,  Moore,  Dig.,  Ill,  673.  Com- 
pare Report  of  Mr.  Olney,  Secy,  of  State,  to  the  President,  Dec.  7,  1896,  For. 
Rel.  1896,  Ixxviii,  Moore,  Dig.,  Ill,  672.  See  Dept.  of  State,  Circular  of 
Aug.  2,  1915,  Circulars  Relating  to  Citizenship,  1916,  p.  74. 

667 


§  380]  NATIONALITY 

to  descend  from  generation  to  generation,  as  in  the  case  of  a 
child  born  in  the  United  States,  whose  father  at  the  time  of  the 
birth  of  the  child  was  a  naturalized  American  citizen  of  Swiss 
origin.^ 

(2) 

§  381.   Respecting  Military  Service. 

Certain  States,  recognizing  the  change  of  nationality  produced 
by  naturalization,  have  sought  to  exact  military  service  from 
former  nationals,  or  have  otherwise  endeavored  to  inflict  punish- 
ment upon  them  for  previous  evasion  of  such  service.^  The 
Italian  Civil  Code  of  1866  announces  that  the  loss  of  citizenship 
does  not  carry  with  it  exemption  from  the  obligation  of  military 
service.^  For  the  infringement  of  a  law  prior  to  emigration 
manifest  in  the  evasion  of  military  service  then  due,  the  former 
sovereign  has  an  undoubted  right  to  impose  a  penalty.  The 
United  States  does  not  appear  to  question  the  assertion  of  it  with 
respect  to  naturalized  American  citizens  returning  to  the  State 
of  origin.^  For  the  failure  to  respond  to  a  call  to  arms  after 
emigration  but  prior  to  naturalization,  the  sovereign  may,  not 
unreasonably,  penalize  its  disobedient  non-resident  national  by 
depriving  him,  should  its  laws  so  provide,  of  civil  or  other  rights, 

» Case  of  F.  A.  Schneider,  For.  Rel.  1897,  562-569,  Moore,  Dig.,  Ill,  664- 
668. 

Concerning  the  position  of  Greece,  see  documents  in  Moore,  Dig.,  Ill, 
604-607 ;  also  For.  Rel.  1905,  510 ;  id.,  1906,  I,  812-813,  containing  opinion 
of  Mr.  A.  Glarakis,  Legal  Adviser  to  the  Ministry  of  War ;  Circular  of  Dept. 
of  State,  Aug.  2,  1915,  Circulars  Relating  to  Citizenship,  1916,  p.  68. 

Concerning  the  position  of  Persia,  see  Circular  of  Dept.  of  State,  May  19, 
1914,  Circulars  Relating  to  Citizenship,  1916,  p.  71. 

2  See,  in  this  regard,  the  law  of  Roumania,  indicated  in  Circular  Notice, 
Department  of  State,  Feb.  20,  1901,  For.  Rel.  1901,  441,  Moore,  Dig.,  Ill, 
621.  It  was  here  stated  that  "One  who  did  not  complete  his  military  serv- 
ice in  Roumania,  and  cannot  prove  that  he  performed  mihtary  service  in  the 
United  States,  is  subject  to  arrest,  or  fine,  or  both,  for  evasion  of  military 
duty."  This  language  was  omitted  from  the  Circular  of  Dec.  18,  1913.  See 
Dept.  of  State,  Circulars  Relating  to  Citizenship,  1916,  p.  72. 

3  For.  Rel.  1878,  458,  id.j  1879,  600,  Moore,  Dig.,  Ill,  610. 

In  Art.  12  of  that  Code  it  is  declared  that  "Loss  of  citizenship  in  the  cases 
stated  in  the  preceding  Article  does  not  exempt  from  the  obligations  of  mili- 
tary service,  nor  from  penalty  inflicted  on  any  one  who  bears  arms  against 
his  native  country."    Moore,  Dig.,  Ill,  610. 

Circular  of  Aug.  2,  1915,  Dept.  of  State,  Circulars  Relating  to  Citizen- 
ship, 1916,  p.  69 ;  also  note  of  Mr.  Lansing,  Secy,  of  State,  to  Senator  Lodge, 
June  9,  1915,  id.,  p.  75. 

For  earlier  cases  in  relation  to  Italy,  see  documents  in  Moore,  Dig.,  Ill, 
608-616,  especially  notice  to  citizens  formerly  subjects  of  Italy  who  con-, 
template  returning  to  that  country,  March  18,  1901,  For.  Rel.  1901,  282. 

*  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Hunt,  Minister  to  Russia,  Dec. 
22,  1883,  H.  Ex.  Doc.  88,  48  Cong.,  1  Sess.,  7-8,  Moore,  Dig.,  Ill,  627. 

668 


RESPECTING   MILITARY   SERVICE  [§  381 

or  of  property  within  its  control.^  Should  he  after  American 
naturaHzation  return  to  the  State  of  his  origin,  the  United  States 
would  have  difficulty  in  maintaining  that  the  former  sovereign 
lacked  the  right  to  punish  him  for  his  act  of  disobedience  com- 
mitted abroad,  unless  prepared  to  assert  that  the  fact  of  naturaliza- 
tion served  not  only  to  dissolve  allegiance  but  also  to  cancel  every 
unfulfilled  obligation  incidental  to  it.^  The  United  States  is, 
however,  believed  to  be  justified  in  protesting  against  the  punish- 
ment of  a  naturalized  American  citizen  for  alleged  evasion  of 
military  service,  in  case  he  emigrated  from  the  State  of  origin 
when  a  child  of  tender  years  and  obviously  long  before  such  ser- 
vice was  due.^  With  equal  reason  it  may  protest  against  the 
treatment  as  an  ofl^ender  of  one  who  failed  to  perform  military 
service  accruing  after  his  naturalization  was  effected.^ 

It  is  believed  to  be  important  as  a  means  of  obtaining  wider 
recognition  abroad  of  the  reasonableness  of  the  American  claim 
as  to  the  general  effect  of  naturalization,  that,  in  the  United  States 
and  elsewhere,  fresh  consideration  be  given  the  nature  and  source 

1  See,  for  example,  Art.  326  of  the  Russian  Criminal  Code,  For.  Rel.  1897, 
439,  440,  Moore,  Dig.,  Ill,  654;  also  Mr.  Bayard,  Secy,  of  State,  to  Mr 
Authes,  Aug.  7,  1885  (a  German  Case),  156  MS.  Dom.  Let.  482,  Moore,  Dig., 
Ill,  432. 

^  See  the  situation  in  the  Case  of  Henry  Mumbour,  arising  under  the 
naturalization  convention  with  the  North  German  Union  of  Feb.  22,  1868, 
and  referred  to  by  Mr.  Fish,  Secy,  of  State,  in  a  communication  to  Mr.  Davis, 
Minister  to  Germany,  No.  Ill,  July  21,  1875,  MS.  Inst.  Germany, XVI,  76, 
Moore,  Dig.,  Ill,  430-431 ;  also  documents,  id.,  Ill,  427-437,  respecting  Ger- 
man military  cases. 

In  a  circular  notice  respecting  "Liability  for  Military  Service  in  Foreign 
Countries  of  Persons  Residing  in  the  United  States",  Aug.  14,  1914,  it 
was  declared  that:  "The  United  States  holds  that  no  naturalized  citizen  of 
this  country  can  rightfully  be  held  to  account  for  military  liability  to  his 
native  land  accruing  subsequent  to  emigration  therefrom,  but  this  principle 
may  be  contested  by  countries  with  which  the  United  States  has  not  entered 
into  treaties  of  naturalization.  The  latter  countries  may  hold  that  naturali- 
zation of  their  citizens  or  subjects  as  citizens  of  other  countries  has  no  effect 
upon  their  original  military  obligation,  or  may  deny  the  right  of  their  citi- 
zens or  subjects  to  become  naturalized  as  citizens  of  other  coimtries,  in  the 
absence  of  express  consent  or  without  the  fulfillment  of  military  obligations." 
Dept.  of  State,  Circulars  Relating  to  Citizenship,  1916,  p.  62.  It  is  believed 
that  the  claim  here  announced  in  behalf  of  the  United  States  is  too  broad  in 
its  scope  if  it  is  designed  to  be  applicable  to  all  cases  where  the  demand  for 
military  service  has  accrued  subsequent  to  emigration. 

3  Case  of  Vittorio  Gardella,  For.  Rel.  1896,  423-426,  Moore,  Dig.,  Ill,  614- 
615 ;  also  Mr.  Frelinghuvsen,  Secy,  of  State,  to  Mr.  Hunt,  Minister  to  Russia, 
Dec.  22,  1883,  H.  Ex.  Doc.  88,  48  Cong.,  1  Sess.,  7-8,  Moore,  Dig.,  Ill,  627. 

*  Possibly  an  exception  to  the  statement  in  the  text  ma}'  be  urged  in  the 
case  of  the  naturalized  citizen  who  returns  and  becomes  domiciled  in  the 
territory  of  the  State  of  his  origin.  In  such  case,  however,  the  fact  of  domi- 
cile would  serve  to  deprive  the  individual  either  of  the  right  of  protection 
or  of  the  nationality  (through  expatriation)  of  the  LTnited  States. 

See  Neutral  Persons  within  Belligerent  Territory,  Exaction  of  Military 
Service,  infra,  §§  625-627. 

669 


§  381]  NATIONALITY 

of  the  right  of  a  sovereign  to  punish  an  individual  because  of  his 
disobedience  to  its  commands  while  he  was  a  national.  More- 
over, there  needs  to  be  swept  aside  the  confusion  of  thought  that 
has  rendered  obscure  the  solid  distinction  between  the  direct 
legal  effect  of  naturalization  upon  the  right  of  a  sovereign  to  exact 
duties  of  allegiance  from  its  former  national,  and  the  effect 
of  it  upon  any  acts  committed  by  a  national  which  were  not  pro- 
ductive of  or  were  unrelated  to  his  naturalization. 


Modes  of  Expatriation 

(1) 
§  382.   Naturalization  in  a  Foreign  State. 

According  to  the  Act  of  March  2,  1907,  "any  American  citizen 
shall  be  deemed  to  have  expatriated  himself  when  he  has  been 
naturalized  in  any  foreign  State  in  conformity  with  its  laws."^ 
This  provision  contains  no  restriction  with  respect  to  residence 
or  domicile  within  the  State  of  adoption.  No  mention  is  made 
of  the  voluntary  aspect  of  the  change  of  allegiance,  nor  is  any 
limitation  expressed  as  to  the  procedure  or  the  processes  whereby 
a  foreign  State  may  endeavor  to  impress  its  national  character 
upon  an  American  citizen. 

It  is  obviously  unnecessary  for  the  Department  of  State  to 
issue  a  certificate  renouncing  any  claim  of  allegiance  in  behalf 
of  the  United  States  with  respect  to  an  American  citizen  who 
seeks  to  expatriate  himself.^ 

1  §  2,  34  Stat.  1228. 

"Whenever  it  comes  to  the  knowledge  of  a  diplomatic  or  consular  officer 
that  an  American  citizen  has  secured  naturalization  in  a  foreign  State  in 
conformity  with  its  laws,  or  has  taken  an  oath  of  allegiance  to  a  foreign  State, 
such  diplomatic  or  consular  officer  should  certify  to  the  facts  under  his  seal 
and  should  transmit  the  certification  to  this  department.  If  the  citizen  who 
has  thus  acquired  foreign  naturalization  was  a  naturalized  citizen  of  the  United 
States,  the  fact  should  be  stated  in  the  certification  and  the  certificate  of  Ameri- 
can naturalization  should,  if  possible,  be  taken  up  and  forwarded  to  the  de- 
partment with  the  certification."  Circular  Instruction  of  Mr.  Root,  Secy, 
of  State,  to  American  Diplomatic  and  Consular  Officers,  April  19,  1907,  For. 
Rel.  1907,  I,  3.  See,  also,  par.  2,  §  15,  Act  of  June  29,  1906,  34  Stat.  601 ; 
Newcomb  v.  Newcomb,  57  S.  W.  2  (Ky.),  cited  in  Moore,  Dig.,  Ill,  711. 

2  Ex  parte  Griffin,  237  Fed.  445.  Even  before  the  enactment  of  the  present 
law  it  was  not  the  custom  of  the  Department  to  issue  such  certificates.  Mr, 
Blaine,  Secy,  of  State,  to  Count  Sponneck,  June  5,  1890,  MS.  Notes  to  Den- 
mark, VII,  219,  Moore,  Dig.,  Ill,  714;  Mr.  Gresham,  Secy,  of  State,  to  Mr. 
White,  Minister  to  Russia,  Oct.  2,  1894,  For.  Rel.  1894,  557,  Moore,  Dig., 
Ill,  714;  Mr.  Loomis,  Acting  Secv.  of  State,  to  Mr.  Hengelmiiller,  Austro- 
Hungarian  Ambassador,  No.  49,  Dec.  23,  1903,  For.  Rel.  1903,  20,  Moore, 
Dig.,  Ill,  586. 

670 


PRESUMPTIONS    OF   EXPATRIATION  [§384 

(2) 

§  383.   Oath  of  Allegiance  to  a  Foreign  State. 

In  the  same  section  of  the  Act  of  March  2, 1907,  it  is  declared  that 
an  American  citizen  shall  be  deemed  to  have  expatriated  himself 
"when  he  has  taken  an  oath  of  allegiance  to  any  foreign  State."  ^ 

The  statute  is  silent  as  to  the  place  where  the  oath  need  be  taken 
in  order  to  produce  such  an  effect.  Doubtless,  however,  the 
efficacy  of  such  an  act  for  purposes  of  expatriation  is  not  de- 
pendent upon  its  being  the  means  of  effecting  naturalization.^ 


(3) 

§  384.   Residence  of  a  Naturalized  Citizen  in  a  Foreign 
Country.     Renunciation  of  Naturalization. 
Section  2  of  the  Act  of  March  2, 1907,  also  declares  that 

When  any  naturalized  citizen  shall  have  resided  for  two 
years  in  the  foreign  State  from  which  he  came,  or  for  five  years 
in  any  other  foreign  State,  it  shall  be  presumed  that  he  has 
ceased  to  be  an  American  citizen,  and  the  place  of  his  general 
abode  shall  be  deemed  his  place  of  residence  during  said  years : 
Provided,  however.  That  such  presumption  may  be  overcome 
on  the  presentation  of  satisfactory  evidence  to  a  diplomatic 
or  consular  officer  of  the  United  States,  under  such  rules  and 
regulations    as    the    Department    of    State    may    prescribe; 

1  §  2,  34  Stat.  1228.  See,  in  this  connection,  In  re  Wildberger,  214  Fed. 
508. 

2  Ex  parte  Griffin,  2.37  Fed.  445.  For  discussions,  prior  to  the  enact- 
ment of  the  law,  respecting  the  significance  of  taking  an  oath  of  allegiance 
to  a  foreign  power,  see  Moore,  Dig.,  Ill,  718-730;  especially,  Mr.  Gresham, 
Secv.  of  State,  to  Mr.  Willis,  Minister  to  Hawaii,  April  5,  1895,  For.  Rel. 
1895,  II,  853;  Mr.  Olney,  Secy,  of  State,  to  Same,  Nov.  13,  1895,  id.,  II,  867; 
Mr.  Hav,  Secy,  of  State,  to  Mr.  Smith,  Minister  to  Liberia,  No.  20,  Nov.  6, 
1898,  MS.  last.  Liberia,  II,  346. 

In  discussions  respecting  the  Bancroft  Treaties  the  Department  of  State 
held  that  renunciation  of  American  naturalization  was  not  dependent  upon 
the  resumption  of  the  nationalitv  of  origin.  Mr.  Olnev,  Secv.  of  State,  to  Mr. 
Uhl,  Ambassador  to  Germany,  Dec.  21,  1896,  For.  Rel.  1896,  221,  Moore,  Dig., 
Ill,  754.  Compare  Mr.  Hav,  Secy,  of  State,  to  Mr.  Jackson,  Charge  at  Ber- 
lin, No.  912,  July  25,  1899,  MS.  Inst.  Germany,  XXI,  64,  Moore,  Dig.,  Ill, 
754. 

In  relation  to  the  Case  of  Antonio  S.  Nunes,  Mr.  Knox,  Secy,  of  State, 
declared  Jan.  12,  1910,  in  a  telegram  to  Mr.  Bryan,  Minister  to  Portugal: 
"If  he  was  forced  by  officials  in  Azores  to  swear  allegiance  to  Portugal  it 
cannot  be  considered  that  he  has  expatriated  himself  under  the  provi.'-ions 
of  the  first  paragraph  of  Section  2  of  the  expatriation  act  of  March  2,  1907." 
For.  Rel.  1910,  832. 

671 


§  384]  NATIONALITY 

And  provided  also,  That  no  American  citizen  shall  be  allowed 
to  expatriate  himself  when  this  country  is  at  war.^ 

According  to  the  Act  of  June  29,  1906,  the  acquisition  of  Ameri- 
can citizenship  by  the  alien  applicant  is  conditioned  upon  his 
making  oath  in  his  petition  that  "it  is  his  intention  to  reside 
permanently  within  the  United  States."  ^  So  great  stress  is 
laid  on  his  good  faith  in  meeting  this  requirement,  that  his  re- 
turn to  the  country  of  his  nativity,  or  his  going  to  any  other 
foreign  country  and  making  permanent  residence  therein  within 
five  years  after  the  issuance  of  a  certificate  of  naturalization,  is 
declared  to  be  prima  facie  evidence  of  a  lack  of  the  requisite  inten- 
tion at  the  time  of  filing  his  application  for  citizenship,  and  is 
made  sufficient,  in  the  absence  of  countervailing  evidence,  to 
authorize,  in  appropriate  proceedings,  the  cancellation  of  his 
certificate  of  citizenship  as  fraudulent.^  Herein  is  recorded  clear 
expression  of  a  national  policy  to  withhold  naturalization  from 
him  who  intends  to  reside  permanently  abroad. 

1  The  United  States  is  consistent,  therefore,  in  regarding  the 
residence  of  a  naturalized  citizen  in  a  foreign  State  for  a  sub- 

!  stantial  period  of  time  as  the  foundation  of  a  presumption  of 
expatriation.'*     By  so  doing  it  conforms,  moreover,  to  the  spirit 

'  of  its  naturalization  conventions,  the  more  recent  of  which  com- 
monly provide  expressly  that  residence  in  the  State  of  origin  for 

;  two  years  shall  raise  a  presumption  of  an  intent  not  to  return 

i  to  the  State  of  adoption,  indicating  thereby  a  renunciation  of 

I  naturalization  —  a  presumption  which  is  made  capable   of    re- 

1  buttal  by  evidence  to  the  contrar3\^ 


1  34  Stat.  1228.  See,  in  this  connection,  United  States  v.  Howe,  231  Fed. 
546,  where  there  appeared  to  be  no  evidence  to  rebut  the  presumption  of  ex- 
patriation. Compare  situation  in  Case  of  Banning  v.  Penrose,  255  Fed.  159, 
161. 

2  Paragraph  2,  §  4,  34  Stat.  596. 

^  Id.,  §  15;  Luria  v.  United  States,  231  U.  S.  9,  22-24.  See,  also.  In  re 
Naturalization  of  Aliens  in  Service  of  Army  or  Navy  of  United  States,  250 
Fed.  316. 

■•  It  is  not  unreasonable  that  the  inference  derived  from  residence  abroad 
should  be  confined  to  cases  of  naturalized  citizens.  They  acquire  American 
nationality  on  condition  that  they  solemnly  declare  an  intention  to  reside 
permanently  in  the  United  States.  Moreover,  their  residence  abroad,  es- 
pecially in  the  country  of  origin,  has  been  shown  to  be  in  fact  productive  of 
international  controversv  and  of  embarrassment  to  the  United  States.  Van 
Dvne,  Naturalization,  347-348;  also  R.  W.  Flournoy,  Jr.,  in  Am.  J.,  VIII, 
483. 

6  See,  for  example,  Art.  II  Convention  with  Costa  Rica,  June  10,  1911, 
Charles'  Treaties,  23.  Concerning  the  interpretation  placed  by  the  Depart- 
ment of  State  upon  the  Bancroft  Treaties  with  the  German  States,  see  docu- 
ments in  Moore,  Dig.,  Ill,  744-754. 

672 


PRESUMPTIONS    OVERCOME  [§  384 

Pursuant  to  the  requirements  of  the  Statute,  the  Department 
of  State  has  announced  that  the  presumption  of  expatriation  may 
be  overcome  if  the  naturahzed  citizen  presents  to  an  American 
diplomatic  or  consular  officer  proof  establishing  the  following 
facts : 

(a)  That  his  residence  abroad  is  solely  or  principally  as  a 
representative  of  American  trade  and  commerce  and  that 
he  intends  eventually  to  return  to  the  United  States  to  re- 
side ;  ^    or, 

(6)  That  his  residence  abroad  is  in  good  faith  for  reasons  of 
health  or  for  education,  and  that  he  intends  eventually  to  re- 
turn to  the  United  States  to  reside ;  or 

(c)  That  some  unforeseen  and  controlling  exigency  beyond 
his  power  to  foresee  has  prevented  his  carrying  out  a  bona  fide 
intention  to  return  to  the  United  States  within  the  time  limited 
by  law,  and  that  it  is  his  intention  to  return  and  reside  in  the 
United  States  immediately  upon  the  removal  of  the  preventing 
cause.^ 

1  Instructions  of  Mr.  Root,  Secy,  of  State,  to  American  Diplomatic  and 
Consular  Officers,  May  14,  1908,  amending  circular  instruction  of  April  19, 
1907,  For.  Rel.  1908,  2. 

According  to  circular  instructions  to  American  Diplomatic  and  Consular 
Officers  issued  during  the  course  of  The  World  War,  on  Dec.  21,  1914,  it  was 
declared:  "Conditions  precedent  to  the  granting  of  a  passport  are,  under 
the  law  and  rules  prescribed  by  authority  of  the  law,  that  the  citizenship  of 
the  applicant,  his  identity,  and,  as  a  rule,  his  permanent  residence  in  the 
United  States  and  definite  intention  to  return  to  it,  with  the  purpose  of  per- 
forming the  duties  of  citizenship,  shall  satisfactorily  be  established.  Circular 
instruction  of  July  26,  1910,  entitled,  'Protection  of  Native  Americans  Re- 
siding Abroad',  and  circular  instruction  of  April  19,  1907,  entitled  'Expa- 
triation', as  amended  by  Circular  Instruction  of  May  14,  1908.  Exceptions 
to  the  latter  condition  may  be  made  in  some  cases  by  special  direction  of  the 
Department,  particularly  in  cases  of  persons  residing  abroad  as  representa- 
tives of  American  trade  and  commerce  and  as  missionaries  of  American  church 
organizations."     American  White  Book,  European  War,  II,  156. 

^  Circular  Instructions  of  Mr.  Root,  Secy,  of  State,  to  American  Diplo- 
matic and  Consular  Officers,  regarding  Expatriation,  April  19,  1907,  For.  Rel. 
1907,  I,  3,  4.  It  is  also  declared  that  "The  evidence  required  to  overcome 
the  presumption  must  be  of  the  specific  facts  and  circumstances  which  bring 
the  alleged  citizen  under  one  of  the  foregoing  heads,  and  mere  assertions, 
even  under  oath,  that  any  of  the  enumerated  reasons  exist  will  not  be  accepted 
as  sufficient."  According  to  Circular  Instructions  to  American  Consular 
Officers,  Nov.  30,  1907,  the  Department  of  State  declared  that  no  naturalized 
citizen  should  be  registered  if  he  had  resided  for  two  years  in  the  country  of 
his  origin  or  for  five  years  in  some  other  foreign  country,  unless  he  produced 
satisfactory  evidence  to  overcome  the  presumption  that  he  had  ceased  to  be  an 
American  citizen.  Such  evidence  was  to  be  directed  to  the  points  indicated 
as  (a),  (b)  and  (c)  in  the  expatriation  circular  of  April  19,  1907.  It  was  also 
declared  that  no  one  should  be  refused  registration  until  he  had  been  afforded 
full  opportunity  to  submit  evidence  to  overcome  the  presumption  of  expatria- 
tion. 

According  to  the  opinion  of  the  Attorney-General,  Mr.  Wickersham,  in  the 
Case  of  Nazara  Gossin,  the  presumption  of  expatriation  is  overcome  when  the 

673 


§  384]  NATIONALITY 

In  1911  the  Department  of  State  announced  as  a  further  "Rule 
(d)  ",  that  the  statutory  presumption  might  be  overcome  by  the 
presentation  by  the  naturahzed  citizen  to  a  diplomatic  or  consu- 
lar officer  of  proof  establishing  that  he  had  made  definite  arrange- 
ments to  return  immediately  to  the  United  States.^  This  rule 
has,  however,  been  abrogated.^ 

naturalized  citizen  returns  to  reside  permanently  in  the  United  States,  28 
Ops.  Attys.-Gen.,  504,  For.  Rel.  1910,  421-422. 

For  cases  arising  prior  to  the  Act  of  1907,  see  documents  in  Moore,  Dig., 
Ill,  735-744. 

1  Circular  Instruction  of  Mr.  Kno.x,  Secy,  of  State,  Nov.  11,  1911,  For.  Rel. 
1911,1. 

In  an  instruction  to  American  Diplomatic  and  Consular  Officers  in  China, 
May  13,  1908,  Mr.  Root,  Secy,  of  State,  announced  that  §  2  of  the  Act  of 
March  2,  1907,  and  the  instructions  concerning  it  were  applicable  to  natu- 
ralized American  citizens  residing  in  China.  For.  Rel.  1908,  1.  In  an  in- 
struction to  similar  officers  in  Turkish  dominions,  Dec.  11,  1907,  Mr.  Root 
made  a  like  announcement  tvith  respect  to  such  persons  residing  in  Turkish 
dominions.  Id.,  745.  It  was  stated  in  both  instructions  that  the  presump- 
tion of  expatriation  derived  from  residence  might  be  overcome  by  proof  of 
residence  as  the  "regularly  appointed  missionary  of  a  recognized  American 
church  organization."  In  the  case  of  China  it  was  declared  also  that  the  pre- 
sumption might  be  overcome  by  proof  that  the  naturalized  citizen  was  regularly 
employed  in  an  enterprise  having  for  its  object  the  development  or  advance- 
ment of  the  people  and  in  no  wise  inconsistent  with  American  interests,  and 
that  he  intended  eventually  to  return  to  the  United  States  to  reside ;  or  that 
he  resided  in  China  in  the  employ  of  the  Chinese  Government  in  a  capacity 
not  inconsistent  with  his  American  citizenship,  and  calculated  to  advance 
legitimate  American  interests,  commercial  or  otherwise,  and  that  he  in- 
tended eventually  to  return  to  the  United  States  to  reside.  In  the  case  of 
Tiu"key,  it  was  declared  that  the  presumption  might  be  overcome  by  proof 
that  the  naturalized  citizen  resided  in  a  "distinctively  American  community 
recognized  as  such  by  the  Turkish  Government."  In  the  case  of  both  coun- 
tries the  presumption  of  expatriation  was  declared  to  be  capable  of  rebuttal 
by  proof  that  the  citizen  resided  solely  ("or  principally",  in  the  case  of  China) 
as  a  representative  of  American  trade  and  commerce,  and  intended  eventually 
to  return  to  the  United  States  to  reside ;  or  that  some  unforeseen  and  con- 
trolling exigency  beyond  his  power  to  foresee  had  prevented  his  carrying  out 
a  bona  fide  intention  of  returning  to  the  United  States  within  the  time  limited 
by  law  and  that  it  was  his  intention  to  return  to  reside  permanently  in  the 
United  States  immediately  upon  the  removal  of  the  preventing  cause. 

In  a  circular  of  Dec.  16,  1912,  it  was  announced  that  the  Department  of 
State  prescribed  the  following  rule  whereunder  the  presumption  of  expatria- 
tion might  be  overcome  in  the  case  of  Americans  in  Turkish  dominions  : 

"  (e)  The  presumption  of  expatriation  may  also  be  overcome,  in  the  case 
of  a  person  who  was  not  formerly  a  Turkish  subject,  by  showing  that  on 
March  2,  1907,  he  had  already  established  his  residence  in  an  American  com- 
munity in  Turkey,  whether  or  not  it  has  been  formally  recognized  as  such  by 
the  Ottoman  Government,  and  that  he  is  still  residing  therein,  and  that  it 
has  been  and  still  is  impracticable  for  him  to  return  to  this  country  to  reside." 
There  was  added  the  following  explanation  :  "It  is  important  to  observe  that 
this  rule  has  no  application  to  persons  who  were  formerly  Turldsh  subjects, 
or  to  those  who  settled  in  Turkey  subsequent  to  the  passage  of  the  law  in  ques- 
tion and  must  therefore  be  presumed  to  have  had  knowledge  of  its  provision, 
or  to  those  who  obtained  naturalization  unlawfully.  Furthermore  this  rule 
is  not  to  be  construed  as  applicable  to  persons  who  were  born  in  Turkey  of 
American  parents.  Their  cases  must  be  decided  according  to  their  peculiar 
merits."     Dept.  of  State,  Circulars  Relating  to  Citizenship,  1916,  p.  40. 

^  This  action  is  understood  to  have  been  due  to  the  decision  of  Hough,  J., 

674 


AMERICAN   WOMEN   MARRYING   ALIENS         [§  385 

By  a  special  rule  of  the  Department,  of  February  28,  1913,  it 
was  declared  that  in  the  case  of  a  naturalized  American  citizen 
residing  in  Canada,  ^Mexico,  the  West  Indies,  Central  America 
or  Panama,  the  presumption  of  expatriation  might  be  overcome 
upon  his  presenting  to  a  diplomatic  or  consular  officer  satisfactory 
evidence  that  he  was  employed  by  a  legitimate  corporation  or 
company,  or  principally  engaged  in  any  legitimate  concern  which 
was  effectively  o-v^Tied  and  controlled  by  a  citizen  or  citizens 
of  the  United  States  and  materially  promoted  its  interests,  and 
that  he  intended  to  return  to  the  United  States  to  reside,^ 

The  Act  of  1907  does  not  provide  for  the  situation  where  the 
naturalized  citizen  shortly  after  his  removal  to  the  State  of  his 
origin  makes  "a  definitive  abandonment  of  residence  and  domi- 
ciliary or  representative  business  interest  in  the  United  States." 
Nevertheless,  it  is  believed  that  under  such  circumstances,  as 
was  said  by  the  Department  of  State  in  1895,  "the  effective  re- 
newal of  the  original  status  may  take  place  immediately  upon 
the  return  to  that  country."  ^  This  principle  has  been  applied 
both  in  the  drafting  and  interpretation  of  the  naturalization  con- 
ventions.^ 

(4) 

§  385.   Marriage  of  an  American  Woman  to  a  Foreigner. 

As  has  been  observed,  the  Act  of  ]\Iarch  2,  1907,  declares  that 

in  United  States  v.  Howe,  231  Fed.  546,  to  the  effect  that  the  bare  returning 
to  reside  in  the  United  States  does  not  itself  suffice  to  rebut  the  presump- 
tion of  previous  loss  of  citizenship  under  §  2  of  the  Act  of  March  2,  1907. 

1  Circular  Instructions  to  American  Diplomatic  and  Consular  Officers,  Feb. 
28, 1913. 

In  discussions  w^th  the  Governments  of  Haiti  and  Great  Britain  in  1912, 
the  Department  of  State  acknowledged  that  the  American  naturalization  of 
persons  of  S^Tian  origin  did  not  necessarily  deprive  the  Government  of  Haiti 
of  the  right  to  exclude  such  individuals  from  its  territory  if  they  were  "classed 
as  undesirable  by  its  local  law  upon  avowed  considerations  of  economic  and 
political  necessity."  The  statutory  law  of  the  United  States  prohibiting  Chi- 
nese immigration  was  declared  to  be  such  as  to  render  it  hardly  consistent  to 
demand  a  suspension  of  the  exercise  of  a  similar  right  by  Haiti,  For.  Rel. 
1912,  529-530,  533-535.  The  operation,  however,  of  the  Haitian  law  with 
respect  to  persons  of  SjTian  origin  engaged  in  business  in  the  territory  of 
Haiti  was  deemed  to  be  unjust  and  such  as  to  justifj^  vigorous  protest.  Id., 
536-541. 

*  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Little,  Consul  at  Tegucigalpa, 
July  13,  1895,  For.  Rel.  1895,  II,  936-937,  Moore,  Dig.,  111,743.  See,  also, 
Van  Dyne,  Naturalization,  348.  If  the  eNadence  sufficed  the  same  principle 
might  be  applied  in  case  of  residence  in  a  foreign  State  other  than  that  of 
origin. 

^  Mr.  Fish,  Secv.  of  State,  to  Mr.  Davis,  Minister  to  Germany,  Nov.  1, 
1876,  MS.  Inst.  Germany,  XVI,  249,  Moore,  Dig.,  Ill,  747;  Mr.  Kasson, 
Minister  to  Germanv,  to  Mr.  Frelinghuvsen,  Secy,  of  State,  Feb.  14,  1885, 
For.  Rel.  1885,  401,  Moore,  Dig.,  Ill,  751. 

675 


§  385]  NATIONALITY 

any  American  woman  who  marries  a  foreigner  shall  take  the 
nationality  of  her  husband.^ 

(5) 

§  386.  Repatriation  of  Persons  Who  Lost  American  Citi- 
zenship in  Connection  with  Services  under  Certain 
Foreign  Belligerents  during  The  World  War. 

According  to  the  Act  of  IMay  9,  1918,  any  person  who,  while 
a  citizen  of  the  United  States,  and  during  the  existing  war  in 
Europe,  had  entered  the  military  or  naval  service  of  any  country 
at  war  with  a  country  with  which  the  United  States  was  then  at 
war,  who  should  be  deemed  to  have  lost  his  citizenship  "  by  reason 
of  any  oath  or  obligation  taken  by  him  for  the  purpose  of  entering 
such  service",  was  permitted  to  resume  his  citizenship  by  taking 
the  oath  of  allegiance  to  the  United  States  prescribed  by  its 
naturalization  law  and  regulations.^ 

g 

§  387.  Acts  Held  Not  to  Effect  Expatriation.  Military  or 
Other  Foreign  Service. 

The  mere  entering  a  foreign  military  service,^  or  the  accept- 
ing of  a  foreign  civil  office,'*  does  not  necessarily  serve  to  divest  an 
American  citizen  of  his  nationality.  Should,  however,  such  serv- 
ice necessitate  the  taking  of  an  oath  of  allegiance  to  a  foreign 
State,  or  cause  the  naturalization,  in  conformity  with  its  laws,  of 
the  American  citizen  within  its  territory,  expatriation  would 
result  through  the  operation  of  the  Act  of  ]\Iarch  2,  1907.^  The 
same  Act  might  render  precarious  the  acceptance  by  a  naturalized 

1  Marriage  of  American  Women  to  AI  ens,  supra,  §  365. 

2  Chap.  69,  40  Stat.  542,  545. 

^  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Whitehouse,  Charge  at  Mexico,  No.  166, 
Nov.  14,  1888,  MS.  Inst.  Mexico,  XXII,  300,  Moore,  Dig.,  Ill,  733.  See,  also, 
other  documents  cited  in  Moore,  Dig.,  Ill,  730-735 ;  and  in  Van  Dyne,  Na- 
tionaUty,  358-360. 

^  Mr.  Rives,  Assist.  Secy,  of  State,  to  Mr.  Sewall,  Consul-General  at  Apia, 
No.  28,  Jan.  6,  1888,  123  MS.  Inst.  Consuls,  532,  Moore,  Dig.,  Ill,  718 ;  Mr. 
Hill,  Acting  Secy,  of  State,  to  Mr.  Lombard,  May  12,  1900,  245  MS.  Dom. 
Let.  189,  Moore,  Dig.,  Ill,  785;  also  Fish  v.  Stoughton,  2  Johns  Cas.  407, 
cited  in  Van  Dyne,  Naturalization,  360.  Corn-pare,  however,  language  of  Mr. 
Wilson,  Acting  Secv.  of  State,  in  Instructions  to  American  Diplomatic  and* 
Consular  Officers,  July  26,  1910,  For.  Rel.  1910,  1. 

^  Mr.  Hav,  Secy,  of  State,  to  Mr.  Turley,  in  an  analogous  situation,  April  6, 
1899,  236  Ms.  Dom.  Let.  186,  Moore,  Dig.,  Ill,  734.  Ex  parte  Griffin,  237 
Fed.  445.  See,  also,  circular  on  Enlistment  of  Americans  in  Foreign  Armies, 
Nov.  1,  1915,  Dept.  of  State,  Circulars  Relating  to  Citizenship,  1916,  p.  62. 

676 


NATIVE  CITIZENS  [§388 

American  citizen  of  an  oflBce  which  necessitated  or  resulted  in 
prolonged  residence  in  a  foreign  country.^  So  long  as  the  individ- 
ual does  not  bring  himself  within  the  operation  of  the  statute, 
various  services  may  be  rendered  without  necessarily  endangering 
his  American  citizenship.  Thus  he  may  accept  office  as  a  foreign 
consul,^  or  become  the  adviser  of  a  foreign  government,  or  even  act 
as  its  diplomatic  representative.' 


7 

LOSS   OF  RIGHT  TO  NATIONAL  PROTECTION 

a 

Foreign  Domicile 

(1) 
§  388.   Native  Citizens. 

The  Executive  Department  has  long  believed  that,  under 
certain  circumstances,  the  American  citizen  who  goes  to  a  foreign 
State,  and  there  makes  his  permanent  home,  ceases  to  possess  the 
right  to  enjoy  the  protection  of  the  United  States.  It  had  been 
intimated  by  Chief  Justice  Marshall  in  1804,  that  until  such  an 
individual  expatriated  himself,  he  was  entitled  to  the  protection 

1  In  such  case  it  would  be  the  indirect  consequences  of  service,  shown  by 
the  presumption  derived  from  long  residence  in  a  foreign  State,  rather  than 
the  bare  fact  of  service  which  would  cause  expatriation.  See  For.  Rel.  1908, 
1,  with  respect  to  public  service  in  China. 

2  Mr.  P.  Smith,  Solicitor,  Dept.  of  State,  to  Mr.  Boerlin,  Oct.  12,  1869, 
82  MS.  Dom.  Let.  186,  Moore,  Dig.,  Ill,  716.  It  may  be  observed  that  foreign 
States  have  frequently  engaged  American  citizens  to  act  as  consular  oflBcers 
within  the  United  States. 

'  In  the  Corvaia  Case,  Italian- Venezuelan  Commission,  1903,  it  was  held 
that  where  an  original  claimant,  born  a  subject  of  the  Two  Sicilies,  lost  his 
citizenship,  according  to  the  code  of  that  country,  by  accepting  diplomatic 
service  from  Venezuela,  and  never  regained  it,  the  claim  of  his  heirs  preferred 
by  Italy  against  Venezuela  should  be  rejected.  The  learned  Umpire  (Mr. 
Ralston)  said  by  way  of  dictum:  "The  umpire  is  disposed  to  beheve  that  the- 
man  who  accepts,  without  the  express  permission  of  his  owti  government  and 
against  the  positive  inhibitions  of  her  laws,  public  and  confidential  employ- 
ment from  another  nation  is  himself  estopped  from  reverting  to  his  prior  con- 
dition to  the  prejudice  of  the  country  whose  interests  he  has  adopted."  Ral- 
ston's  Report,  782,  808. 

See  Mr.  Knox,  Secy,  of  State,  to  the  American  Minister  at  Teheran,  Dec.  1, 
1911,  in  relation  to  the  protection  of  Mr.  Shuster,  an  American  citizen  about 
to  be  recalled  or  dismissed  as  treasurer-general  of  Persia,  For.  Rel.  1911,  685 ; 
Mr.  Bacon.  Acting  Secy,  of  State,  to  Mr.  Bryan,  American  Minister  to  Portu- 
gal, May  16,  1907,  For.  Rel.  1907,  II,  958,  with  respect  to  the  effect  of  the  ac- 
ceptance of  the  title  of  baron  by  a  native-born  American  citizen  long  residing 
in  Lisbon,  upon  his  American  citizenship  and  upon  his  right  to  protection  by 
the  United  States. 

677 


§  388]  NATIONALITY 

of  his  own  country.^  Possibly,  therefore,  in  order  to  justify 
the  withholding  of  protection,  the  Department  of  State  in  earlier 
days  announced  that  the  taking  up  of  a  permanent  abode  in  a 
foreign  land  produced  expatriation.^  No  act  of  Congress,  how- 
ever, proclaimed  such  a  rule,  and  none  ever  has. 

Gradually  it  came  to  be  understood  that  a  native  American 
citizen  might  lose  his  right  to  claim  the  protection  of  the  United 
States  without  losing  also  his  national  character,^  and  that  so  long 
as  he  did  not  formally  renounce  his  allegiance  or  become  natural- 
ized abroad,  it  was  both  unwise  and  unnecessary  to  regard  him 
as  having  forfeited  his  citizenship  by  reason  of  his  protracted 
residence  in  the  territory  of  a  foreign  State.  Thus  Secretary 
Hay,  in  circular  instructions  issued  in  1899,  declared  that  "even 
where  expatriation  may  not  be  established,  a  person  who  is  per- 
manently resident  and  domiciled  outside  of  the  United  States 
cannot  receive  a  passport."  ^ 

According  to  the  same  instructions,  following  the  view  earlier 
expressed  by  Secretary  Fish,  a  presumption  of  an  intention  to 
remain  in  the  country  where  one  had  settled  was  derived  from 
the  mere  fact  of  protracted  residence  therein,  a  conclusion  which 
was  interpreted  to  signify  the  acquisition  of  a  foreign  domicile. 
This  presumption  was,  however,  said  to  be  capable  of  rebuttal 
by  proof  of  a  fixed  and  present  intention  to  return  to  the  United 
States  within  a  given  period.^     By  instructions  issued  in  1910, 

1  See  his  opinion  in  Murray  v.  Schooner  Charming  Betsy,  2  Cranch,  64,  120. 
Also  Mr.  Calhoun,  Secv.  of  State,  to  Mr.  Fairfield,  U.  S.  S.,  Dec.  9,  1844,  35 
MS.  Dom.  Let.  40,  Moore,  Dig.,  Ill,  758. 

2  Mr.  Webster,  Secy,  of  State,  to  Mr.  Severance,  July  14,  1851,  H.  Ex.  Doc. 
48,  53  Cong.,  2  Sess.,  342,  343,  Moore,  Dig.,  Ill,  758;  Mr.  Marcy,  Secy,  of 
State,  to  Mr.  Kinney,  Feb.  4,  1855,  43  MS.  Dom.  Let.  362,  Moore,  Dig.,  Ill, 
759. 

Compare  Argument  of  Mr.  Ashton,  Agent  and  Counsel  of  the  United  States, 
in  Case  of  De  Leon,  No.  593,  before  Mexican-American  Commission,  Conven- 
tion of  July  4,  1868,  Moore,  Arbitrations,  2696-2706 ;  also  decision  of  Com- 
mander Bertinatti,  Umpire,  in  Fluvel  Belcher  Case,  No.  23,  American-Costa 
Rican  Commission,  Convention  of  July  2,  1860,  id.,  2695. 

3  Mr.  Buchanan,  Secy,  of  State,  to  Mr.  Campbell,  Consul  at  Havana, 
July  26,  1848,  10  MS.  Despatches  to  Consuls,  473,  Moore,  Dig.,  Ill,  719  (also 
comment  by  Prof.  Moore  thereon) ;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Wash- 
burne.  Minister  to  France,  June  28,  1873,  For.  Rel.  1873,  I,  256-259,  Moore, 
Dig.,  Ill,  763 ;  Mr.  Frehnghuysen,  Secy,  of  State,  to  Mr.  Lowell,  Minister  to 
Great  Britain,  Feb.  27,  1884,  For.  Rel.  1884,  216,  218,  Moore,  Dig.,  Ill,  717. 

^  ^  For.  Rel.  1907,  I,  5,  where  the  same  instructions  appear  as  re-issued  by 
Mr.  Root,  Secy,  of  State,  under  date  of  April  19,  1907. 

^  It  was  also  declared  that  "The  treatment  of  the  individual  cases  as  they 
arise  must  depend  largely  upon  attendant  circumstances.  Where  an  ap- 
olicant  has  completely  severed  his  relations  with  the  United  States ;  has  neither 
kindred  nor  property  here ;  has  married  and  established  a  home  in  a  foreign 
land ;  has  engaged  in  business  or  professional  pursuits  wholly  in  foreign  coun- 
tries ;  has  so  shaped  his  plans  as  to  make  it  impossible  or  improbable  that  thev 

678 


NATIVE    CITIZENS  [§  388 

the  Department  of  State  somewhat  modified  its  earlier  position 
by  reason  of  changed  conditions.  It  was  declared  that  an  Ameri- 
can citizen 

may  now  have  a  permanent  foreign  residence  and  yet  con- 
tribute, indirectly  if  not  directly,  to  the  wealth  and  strength, 
the  prestige  and  general  welfare  of  his  country,  so  that  as  long 
as  he  maintains  a  true  allegiance  to  this  Government  and  is 
ready,  if  need  be,  to  come  to  its  defense,  he  may  be  entitled  to 
its  protection.^ 

It  was  announced,  therefore,  that  in  each  case  of  a  native  Ameri- 
can permanently  residing  abroad,  it  would  be  necessary,  before 
deciding  as  to  his  right  to  protection,  to  determine  among  other 
things  whether  he  maintained  his  actual  connection  with  the 
United  States  and  his  true  allegiance  thereto,  or  whether  he  had 
practically  abandoned  it  and  identified  himself  with  the  political 
community  of  the  land  of  his  residence.  It  w^as  said  that  while 
with  respect  to  questions  arising  in  regard  to  registration  and  the 
issuance  of  passports  a  lack  of  intention  to  resume  residence  in 
the  United  States  might,  upon  matters  relating  to  protection 
as  American  citizens,  still  raise  the  presumption  of  expatriation, 
such  a  presumption  should  not  be  considered  as  conclusive,  but 
the  person  concerned  should  be  given  an  opportunity  to  show 
that  he  was  "still  a  true  citizen  of  the  United  States."  ^ 

will  ever  include  a  domicile  in  this  country  —  these  and  similar  circumstances 
should  exercise  an  adverse  influence  in  determining  the  question  whether  or 
not  a  passport  should  issue."     For.  Rel.  1907,  I,  5. 

1  Instructions  of  Mr.  Wilson,  Acting  Secy,  of  State,  to  American  Diplomatic 
and  Consular  Officers,  July  26,  1910,  For.  Rel.  1910,  1.  Concerning  these  in- 
structions see  Richard  W.  Flournoy,  Jr.,  in  A7n.  J.,  VIII,  482;  also  E.  M. 
Borchard,  Diplomatic  Protection,  §  328. 

2  In  the  same  instructions  it  was  also  said:  "In  this  connection  are  to  be 
considered  the  cause  of  the  foreign  residence,  participation  in  the  politics  of 
the  coimtry  of  residence,  or  abstention  therefrom,  ties  of  family,  business, 
or  property  maintained  with  this  country,  and,  in  the  case  of  a  married  man, 
the  original  nationality  of  the  wife  and  the  mode  of  raising  the  children,  and, 
finally,  the  general  conduct  of  the  person  in  question.  It  is  impossible  to  lay 
down  a  general  rule  which  will  be  appUcable  to  every  case  which  arises,  and 
each  case  must  be  decided  upon  its  pecuhar  merits.  You  wUl,  therefore,  not 
finally  refuse  a  passport  or  registration  certificate  to  any  person  belonging 
to  the  class  under  consideration  until  you  shall  have  been  authorized  to  do  so 
by  the  department  after  a  full  presentation  of  the  pertinent  facts." 

According  to  Circular  Instructions  to  American  Diplomatic  and  Consular 
OflScers  issued  during  the  course  of  The  World  War,  on  Dec.  21,  1914,  it  was 
declared  :  "Conditions  precedent  to  the  granting  of  a  passport  are,  under  the 
law  and  rules  prescribed  by  authority  of  the  law,  that  the  citizenship  of  the 
applicant,  his  identity,  and,  as  a  rule,  his  permanent  residence  in  the  United 
States  and  definite  intention  to  return  to  it,  with  the  purpose  of  performing 
the  duties  of  citizenship,  shall  satisfactorily  be  established.  See  circuhir 
instruction  of  July  26,  1910,  entitled,  'Protection  of  Native  Americans  Re- 

679 


§  388]  NATIONALITY 

It  should  be  observed  that  the  Department  of  State  has  clearly 
announced  that  a  presumption  of  foreign  domicile  producing  a 
forfeiture  of  the  right  to  claim  the  protection  of  the  United  States 
does  not  arise,  when  residence  abroad  is  for  the  purpose  of  repre- 
senting and  extending  legitimate  American  enterprises ;  or  when 
reasons  of  health  render  travel  and  return  impossible ;  or  when 
pecuniary  exigencies  interfere  with  the  desire  to  return ;  or  even 
when  family  or  property  connections  with  the  United  States  have 
been  kept  up.^ 

2) 

§  389.     Naturalized  Citizens. 

The  need  of  the  application  to  naturalized  American  citizens 
of  the  rule  that  causes  domicile  abroad  to  result  in  loss  of  the 
right  to  national  protection  is  chiefly  removed  by  the  Acts  of 
Congress  of  June  29,  1906,  and  March  2,  1907,  the  earlier  of  which, 
as  has  been  observed,  renders  the  acquisition  of  a  foreign  domicile 
within  a  certain  period  after  naturalization  prima  facie  evidence 
of  fraud  in  the  acquisition  of  citizenship,^  and  the  later  of  which 
serves  to  derive  from  a  specified  residence  abroad  a  presumption  of 
expatriation.^  Thus,  according  to  the  existing  law  of  the  United 
States,  conduct  which  serves,  in  the  case  of  a  native  citizen  to 
raise  a  presumption  that  he  has  forfeited  his  right  to  the  protection 
of  his  country,  may  serve,  in  that  of  a  naturalized  citizen,  to  raise 
a  presumption  that  he  has  forfeited  his  American  nationality 
as  well.^ 

(3) 

§  390.   Residence  in  Oriental  Countries. 

The  rule  that  the  right  to  national  protection  may  be  lost  as 
the  result  of  permanent  residence  in  a  foreign  country  is  not 

siding  Abroad',  and  circular  instruction  of  April  19,  1907,  entitled  'Ex- 
patriation', as  amended  by  circular  instruction  of  May  14, 1908.  Exceptions 
to  the  latter  condition  may  be  made  in  some  cases  by  special  direction  of  the 
Department,  particularly  in  cases  of  persons  residing  abroad  as  representa- 
tives of  American  trade  and  commerce  and  as  missionaries  of  American  church 
organizations."     American  White  Book,  European  War,  II,  156. 

1  Circular  Instructions  of  Mr.  Hay,  Secy,  of  State,  to  American  Diplomatic 
and  Consular  Officers,  March  27,  1899,  re-issued  by  Mr.  Root,  Secy,  of  State, 
April  19,  1907,  For.  Rel.  1907,  I,  5.  See,  also,  documents  concerning  the  rep- 
resentation of  American  business  interests  abroad  in  Moore,  Dig.,  Ill,  771- 
773  ;  and  concerning  residence  abroad  for  reasons  of  health,  id.,  Ill,  773-776. 

^  §  15,  34  Stat.  596,  601.  ^  §  2,  34  Stat.  1228. 

^  See,  generally.  Residence  of  a  Naturalized  Citizen  in  a  Foreign  Country, 
Renimciation  of  Naturalization,  supra,  §  384. 

For  cases  arising  prior  to  the  enactment  of  the  present  laws,  see  documents 
in  Moore,  Dig.,  Ill,  766-771. 

680 


MISSIONARIES  IN  ORIENTAL  AND  OTHER  COUNTRIES  [§  391 

applied  to  American  communities  settled  as  such  in  Oriental  lands 
and  recognized  in  their  distinctively  national  character  by  the 
system  of  government  there  prevailing.^  Thus  the  Department 
of  State  has  been  disposed  to  afford  the  protection  of  a  passport 
to  citizens  whose  residence  was  prolonged  indefinitely  in  the 
territory  of  a  State  in  which  the  United  States  exercised  extra- 
territorial jtirisdiction,  so  long  as  their  pursuits  were  legitimate 
and  not  prejudicial  to  the  friendly  relations  of  the  United  States 
with  the  government  of  the  State  of  residence.^ 

On  the  other  hand,  the  rule  is  applied  to  the  naturalized  Ameri- 
can citizen  who  returns  to  the  Oriental  State  of  which  he  is  a 
native ;  ^  and  under  the  existing  statutory  laws  of  the  United 
States,  it  is  believed  that  the  presumption  of  his  fraudulent 
naturalization  or  of  his  expatriation  would  be  as  readily  estab- 
lished if  the  country  of  residence  were  one  of  a  different  type.^ 

(4) 

§  391.    Missionaries  in  Oriental  and  Other  Countries. 

The  Department  of  State  wisely  permits  the  naturalized  Ameri- 
can citizen  to  rebut  the  presumption  of  expatriation  derived 
from  long  residence  in  China  or  in  the  Turkish  Empire,  by  estab- 
lishing that  he  resides  therein  as  the  regularly  appointed  mission- 
ary of  a  recognized  American  church  organization.^  It  is  be- 
lieved that  the  same  rule  might  well  be  similarly  applied  in 
the  case  of  naturalized  American  missionaries  residing  in  other 

'  Mr.  Baj^ard,  Secy,  of  State,  to  Mr.  Winchester,  Minister  to  Switzerland, 
Oct.  12,  1887,  For.  Rel.  1887,  1073,  1074,  Moore,  Dig.,  Ill,  776. 

^  Circular  Instructions  of  Mr.  Hay,  Secy,  of  State,  to  American  Diplomatic 
and  Consular  Officers,  March  27,  1899,  For.  Rel.  1902,  1,  3,  Moore,  Dig., 
Ill,  976.     Also  Passports,  infra,  §  400. 

3  Mr.  Rockhill,  Assist.  Secy,  of  State,  to  Mr.  Burke,  No.  51,  Dec.  29,  1896, 
154  MS.  Inst.  Consuls,  G82,  Moore,  Dig.,  Ill,  776.  See,  also,  instances  of 
Naturalized  American  Citizens  of  Turkish  origin  who  have  returned  to  the 
Ottoman  Empire  as  Turkish  subjects,  mentioned  in  documents  cited  in  Moore, 
Dig.,  Ill,  777-779. 

*  See,  for  example,  circular  instructions  of  Mr.  Root,  Secy,  of  State,  respect- 
ing the  Expatriation  and  Protection  of  Americans  in  China,  May  13,  1908, 
For.  Rel.  1908,  1,  and  of  Americans  in  Turkey,  Dec.  11,  1907,  id.,  745. 

See,  also,  especially  instruction  in  behalf  of  Mr.  Knox,  Secy,  of  State  (signed 
by  Mr.  Carr),  to  the  American  Consul-General  at  Beirut,  Dec.  16,  1912,  Dept. 
oi  State,  Circulars  Relating  to  Citizenship,  1916,  p.  40. 

It  is  believed  that  such  a  case  as  that  of  Hajie  Seyyah,  a  native  Persian, 
arising  in  1893,  For.  Rel.  1893,  498-501,  Moore,  Dig.,  Ill,  779-781,  would 
probably  to-day  be  regarded  as  covered  by  the  Act  of  Congress  of  March  2, 
1907. 

See,  also,  correspondence  in  1911,  concerning  the  naturalization  of  Chinese 
by  other  governments.  For.  Rel.  1911,  64-72. 

5  For.  Rel.  1908,  1  and  745. 

681 


§  391 J  NATIONALITY 

countries.^  The  United  States  has  not  been  generally  disposed 
to  regard  native  or  naturalized  American  citizens  actively  en- 
gaged in  missionary  enterprises  in  foreign  States  as  having  for- 
feited their  nationality,  or  as  having  lost  the  right  to  national 
protection.^ 

b 

Other  Acts 

(1) 
§  392.   Participation  in  the  Political  Life  of  a  Foreign  State. 
Fugitives  from  Justice. 

On  grounds  of  public  policy  a  State  may  deem  the  conduct  of 
a  national,  apart  from  residence  abroad,  to  be  such  as  to  warrant 
the  withholding  that  full  measure  of  protection  which  otherwise 
would  be  readily  accorded.  Thus,  while  an  American  citizen 
by  taking  office  in  a  foreign  State  does  not  necessarily  lose  the 
right  of  national  protection,  his  action  may  retard  the  readiness 
of  the  United  States  to  espouse  his  cause,  unless  he  becomes 
the  victim  of  a  denial  of  justice,  to  whom  also  no  local  remedy 
offers  a  means  of  redress.^  Likewise,  active  participation  in 
the  political  life  of  a  foreign  State  may  produce  a  similar  result.^ 
Any  withholding  of  protection  in  such  cases  is  due  to  domestic 
policy  rather  than  to  a  requirement  of  international  law.     It 

1  While  American  missionary  enterprises  have  attained  largest  develop- 
ment in  Oriental  States,  they  are  also  established  in  numerous  countries  of  the 
Occident.  It  is  believed  that  no  distinction  should  be  drawn  in  the  matter  of 
the  expatriation  and  protection  of  American  missionaries  residing  in  States 
of  the  latter  kind. 

2  Documents  in  Moore,  Dig.,  Ill,  971-974,  especially  Mr.  Adee,  Acting 
Secv.  of  State,  to  Mr.  Denby,  Minister  to  China,  No.  1470,  July  20,  1897, 
MS".  Inst.  China,  V.  460 ;  and  Mr.  Hay,  Secv.  of  State,  to  Mr.  Conger,  Minister 
to  China,  Jan.  18,  1900,  For.  Rel.  1900,  393. 

3  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Lowell,  Minister  to  Great 
Britain,  April  25,  1882,  For.  Rel.  1882,  230,  231,  Moore,  Dig.,  Ill,  782 ;  Mr. 
Uhl,  Acting  Secy,  of  State,  to  Mr.  Weil,  Oct.  4,  1894,  199  MS.  Dom.  Let.  60, 
Moore,  Dig.,  Ill,  783  ;  Mr.  Rockhill,  Acting  Secy,  of  State,  to  Messrs.  Phillips 
&  McKenney,  Sept.  1,  1896,  212  MS.  Dom.  Let.  300,  Moore,  Dig.,  Ill,  784. 

Concerning  the  attitude  of  the  Department  of  State  re.specting  the  Case 
of  W.  Morgan  Shuster,  an  American  citizen,  who  became  Treasurer-General 
of  Persia,  see  Contractual  Claims,  supra,  §  304. 

See,  also,  Section  7  of  Claims  Circular  of  Dept.  of  State  of  1919,  Revision 
of  Jan.  30,  1920. 

4  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Logan,  No.  28,  Oct.  23,  1879,  MS.  Inst. 
Cent.  Am.,  XVIII,  47,  Moore,  Dig.,  Ill,  785 ;  also  other  documents,  id.,  Ill, 
785-786. 

See,  also,  in  this  connection.  Instructions  of  Mr.  Wilson,  Acting  Secy,  of 
State,  to  American  Diplomatic  and  Consular  Officers,  July  26,  1910,  For.  Rel. 
1910,  1,  2. 

682 


UNNEUTRAL   CONDUCT  [§  393 

is  not  believed  that  a  State  is  deprived  of  the  right  to  interpose 
in  behalf  of  a  national  because  of  his  taking  part  in  the  organiza- 
tion and  administration  of  the  foreign  country  in  which  he  resides.^ 
A  State  such  as  the  United  States  may  reasonably  decline  to 
come  to  the  assistance  of  its  own  citizens  who  as  fugitives  from  its 
justice  have  sought  refuge  on  foreign  soil,^  or  whose  conduct  is 
for  any  other  reason  regarded  by  it  as  censurable.^ 

(2) 
§  398.   Unneutral  Conduct. 

The  American  citizen  who  commits  acts  of  hostility  against 
a  country  with  which  the  United  States  is  at  peace  is  deemed, 
as  has  been  observed,  to  forfeit  the  right  of  national  protection 
from  the  legitimate  consequences  of  his  conduct.^  If  he  partici- 
pates in  a  war  with  respect  to  which  the  United  States  is  a  neutral, 
he  so  identifies  himself  with  the  State  wiiose  cause  he  espouses 
as  to  render  himself  liable  to  treatment  as  a  belligerent.^  In 
such  case,  his  own  country  cannot  assure  him  protection  without 
making  itself  a  party  to  his  unneutral  acts.^  If  after  having 
entered  the  service  of  one  belligerent  he  becomes  the  victim  of  a 
denial  of  justice  at  the  hands  of  another  State,  any  claim  for  repara- 

1  Correspondence  between  Mr.  Olney,  Secy,  of  State,  and  Baron  Fava, 
Italian  Ambassador  in  1896,  relative  to  the  lynching  of  three  Italians  at 
Hahnville,  La.,  For.  Rel.  1896,  407,  410-411,  412,  414-418,  421-422,  Moore, 
Dig.,  Ill,  344-353. 

It  was  declared  in  Circular  Instructions  to  certain  American  Consular  Officers, 
June  22,  1907,  that  no  circumstance  is  more  calculated  to  confirm  a  presumption 
of  expatriation  than  the  fact  that  a  person  does  by  voting  participate  in  the 
political  life  of  a  foreign  country,  thus  acquiring  a  "political  domicile."  In- 
gram's Dig.,  Consular  Instructions,  Jan.  1,  1897  to  May  25,  1908,  p.  138. 

2  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Hanna,  Minister  to  the  Argentine  Re- 
pubUc,  No.  22,  June  25,  1886,  MS.  Inst.  Argentine  RepubUc,  XVI,  385,  Moore. 
Dig.,  Ill,  790. 

3  Claims,  Obstacles  to  Presentation,  supra,  §  274. 

*  Claims,  Obstacles  to  Presentation,  supra,  §  274.  Also  Dept.  of  State 
Claims  Circular  of  1919,  Revision  of  Jan.  30,  1920,  Section  7. 

See,  also,  opinion  of  Mr.  Bradford,  Atty.-Gen.,  1  Ops.  Attvs.-Gen.,  57, 
Moore,  Dig.,  Ill,  786;  Mr.  Webster,  Secy,  of  State,  to  Mr.  Peyton,  Jan.  6, 
1842,  32  MS.  Dom.  Let.  140,  Moore,  Dig.,  Ill,  787  ;  proclamation  of  President 
Taylor,  Aug.  11,  1849,  Richardson's  Messages,  V,  7,  Moore,  Dig.,  Ill,  787; 
proclamation  of  President  Taft,  regarding  disturbances  in  Mexico,  March  2, 
1912,  Am.  J.,  VI,  Supp.,  146;  neutrality  proclamations  of  President  Wilson 
of  1914  and  1915,  American  White  Book,  European  War,  II,  15,  17. 

*  George  Grafton  Wilson,  Proceedings,  Am.  Pol.  Sc.  Ass.,  1904,  Moore,  Dig., 
VII,  877-878. 

*  "The  Department  of  State  will  not  present  to  a  foreign  government  a  claim 
based  on  transactions  involving  a  violation  of  the  neutrality  of  the  United 
States."  Moore,  Dig.,  VI,  623,  based  on  statement  of  Mr.  Bayard,  Secy. 
of  State,  to  Messrs.  Morris  and  Fillette,  July  28,  1888,  169,  MS.  Dom.  Let. 
263. 

683 


§  393]  NATIONALITY 

tion  must  be  preferred  solely  by  the  country  in  whose  service 
he  was  engaged  when  subjected  to  ill-treatment.^ 


8 
§  394.    Seamen. 

Seamen  serving  in  the  naval  or  mercantile  marine  under  a 
flag  not  their  own,  are  said  to  be  entitled,  for  the  duration  of 
that  service,  to  the  protection  of  the  flag  under  which  they 
serve. '^ 

The  United  States,  as  has  been  observed,  under  the  existing 
statutory  law,  announces  that  every  seaman,  being  an  alien,  shall, 
after  his  declaration  of  intention  to  become  a  citizen  of  the  United 
States,  and  after  he  shall  have  served  three  years  upon  such  mer- 
chant or  fishing  vessels  of  the  United  States,  be  deemed  a  citizen 
of  the  United  States  for  the  purpose  of  serving  on  board  any  such 
merchant  or  fishing  vessel  thereof,  and  that  such  seaman  shall, 
"for  all  purposes  of  protection  as  an  American  citizen,  be  deemed 
such  after  the  filing  of  his  declaration  of  intention  to  become  such 
citizen."  ^ 

Pursuant  to  its  statutory  law,  the  United  States,  through  its 
consular  service,  undertakes  to  extend  relief  to  American  seamen 
found  destitute  in  foreign  countries,  regardless  of  the  flag  of  the 
vessel  on  which  they  last  served,  and  to  all  seamen  of  whatsoever 

1  Opinion  of  Hassaurek,  Commissioner,  for  the  Commission  in  Cases  of  the 
Good  Return  and  the  Medea,  American-Ecuadorean  Commission,  Convention 
of  Nov.  25,  1862,  Moore.  Arbitrations,  III,  2731-2740  ;  Opinion  of  Sir  F.  W.  A. 
Bruce,  in  certain  cases  before  American-Colombian  Commission,  Convention 
of  Feb  10,  1864,  id.,  2740-2743 ;  Opinion  of  Findlay,  Commissioner,  for  the 
Commission,  in  certain  cases  before  American-Venezuelan  Commission,  Con- 
vention of  Dec.  5,  1885,  id.,  2743-2751.  With  reference  to  these  cases  see, 
also,  Moore,  Dig.,  Ill,  788.  Also  Mr.  Fish,  Secv.  of  State,  to  Mr.  Murrav. 
Dec.  7,  1869,  82  MS.  Dom.  Let.  453,  Moore,  Dig.,  VI,  623. 

-  The  language  of  the  text  is  that  of  Sir  Edward  Thornton,  Umpire,  in  the 
Case  of  Francis  McCready,  Mexican-American  Commission,  Convention  of 
July  4,  1868,  Moore,  Arbitrations,  III,  2536,  2537,  Moore,  Dig.,  Ill,  795. 

3  Chap.  69,  Act  of  May  9,  1918,  40  Stat.  544,  U.  S.  Comp.  Stat.  1918, 
§  4352  (8).  It  is  expressly  declared  that  nothing  in  the  Act  of  1918  is  to  be 
construed  to  repeal  or  modify  any  portion  of  the  so-called  Seamen's  Act  of 
March  4,  1915,  38  Stat.  1164,  Chap.  153. 

See  Declaration  of  Intention,  Does  Not  Confer  Citizenship,  supra,  §  358. 

See  Consular  Regulations  of  the  United  States,  1888,  Art.  170,  cited  in  I\Ir. 
Bayard,  Secy,  of  State,  to  Air.  Hubbard,  Minister  to  Japan,  Nov.  10,  1888, 
For.  Rel.  1888,  II,  1079-1080,  Moore,  Dig.,  Ill,  799. 

Cf.  Cases  of  two  British  sailors  of  the  American  ship  Keweenaw  attacked  at 
Valparaiso,  Chile,  in  1891,  For.  Rel.  1891,  217-345,  id.,  1900,  66-71,  Moore, 
Dig.,  Ill,  796.  See,  also,  Mr.  Uhl,  Acting  Secy,  of  State,  to  Messrs.  Goodrich 
et  al.,  April  10,  1894,  For.  Rel.  1895,  I,  229,  231,  Moore,  Dig.,  Ill,  798;  also 
Dept.  of  State,  Claims  Circular  of  1919,  Revision  of  Jan.  30,  1920,  Sections  5 
and  6. 

684 


CARE    OF    INDIGENT    NATIONALS  [§  395 

nationality,  who  are  found  destitute  immediately  after  having 
served  on  an  American  ship,^ 


9 

§  395.    Care  of  Indigent  Nationals. 

No  rule  of  international  law  requires  a  State  to  provide  relief 
for  indigent  nationals  abroad,  or  for  their  return  to  its  terri- 
tory if  for  any  reason  they  have  become  a  public  charge.  The 
United  States  has  not  as  yet  seen  fit  to  burden  itself  with  such 
an  undertaking  by  treaty  or  otherwise.^  In  announcing  this 
fact  the  Department  of  State  has  declared  that  the  patients  in 
the  almshouses  and  asylums  throughout  the  United  States  com- 
prise large  numbers  of  aliens  who  are  none  the  less  cared  for 
by  the  authorities  of  the  locality  where  their  illness  happens 
to  occur  .^ 

On  occasions  of  great  emergency  when  large  numbers  of  Ameri- 
cans have  been  unable  to  leave  foreign  territory  where  their  con- 
tinued presence  involved  personal  danger  or  hardship,  the  Con- 
gress has  furnished  necessary  relief  by  way  of  subsistence  and 
transportation  to  the  United  States. 

1  The  statement  in  the  text  is  based  upon  the  language  of  Mr.  F.  W.  Seward, 
Acting  Secy,  of  State,  to  Chev.  Tavera,  Austro-Hungarian  Minister,  Aug.  13, 
1877,  MS.  Xotes  to  Austria,  VIII,  155,  Moore,  Dig.,  Ill,  796,  citing  to  same 
effect,  Mr.  Hill,  Acting  Secy,  of  State,  to  Mr.  Choate,  Ambassador  to  Great 
Britain,  No.  639,  May  24,  1901,  MS.  Inst.  Great  Britain,  XXXIII,  612. 

Also  Rev.  Stat.  §§  4577,  4578,  as  amended  Jvme  26,  1884,  and  June  19, 
1886,  and  §  4579.  These  sections  are  §§  8368,  8369  and  8370,  of  U.  S.  Comp. 
Stat.  1918  ed. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States,  1897,  §  175, 
p.  68,  Moore,  Dig.,  Ill,  804 ;  Mr.  Wharton,  Acting  Secy,  of  State,  to  Mr. 
Douglas,  Nov.  28,  1891,  184  MS.  Dom.  Let.  247,  Moore,  Dig.,  Ill,  806. 

In  his  annual  message  of  Dec.  2,  1872,  President  Grant  wiseh^  urged  that 
provision  be  made  for  the  relief  of  distressed  citizens,  other  than  searnen,  who 
might  become  destitute  or  sick  abroad.  Richardson's  Messages,  VH,  191, 
Moore,  Dig.,  Ill,  804. 

2  Mr.  Bayard,  Secy,  of  State,  to  Count  Lippe-Weissenfeld,  Austrian  Charge, 
June  8,  1886,  MS.  Notes  to  Austria,  VIII,  518,  Moore,  Dig.,  Ill,  806. 

In  exceptional  cases  the  Department  of  State  gives  information  through 
the  diplomatic  channel  as  to  indigent  aliens  in  the  United  States,  that  relatives 
abroad  may  have  the  opportunity  to  care  for  those  individuals.  Mr.  Olney, 
Secy,  of  State,  to  Mr.  Hengelmiiller,  Austro-Huiigarian  Minister,  Jan.  13, 
For.  Rel.  1897,  13-14,  Moore,  Dig.,  Ill,  807. 

Mr.  Bayard,  Secy,  of  State,  to  Mr.  Lowell,  Minister  to  Great  Britain, 
April  10,  1885,  concerning  the  aid  to  be  rendered  an  American  citizen  charged 
with  crime  and  lacking,  for  any  reason,  all  the  means  of  defense  which  the  law 
allowed.     MS.  Inst.  Great  Britain,  XXVH,  446,  Moore,  Dig.,  Ill,  805. 

^  The  most  notable  instance  was  the  relief  afforded  American  tourists  in 
Europe  at  the  outbreak  of  the  War  in  August,  1914. 

685 


§  396]  NATIONALITY 

10 

THE  TEMPORARY  PROTECTION  OF  DOMICILED  ALIENS 
DECLARING  AN  INTENTION  TO  BECOME  AMERICAN 
CITIZENS 

a 

§  396.   Thrasher's  Case.     Koszta's  Case. 

From  the  language  of  ]\Ir.  Webster,  Secretary  of  State,  in  his 
report  on  Thrasher's  Case,  December  23,  1851,^  and  from  that 
of  Mr.  Marcy,  Secretary  of  State,  in  his  note  of  September  26, 
1853,  to  the  Austrian  Charge  d'Affaires,  in  the  Martin  Koszta 
Case,^  there  developed  in  the  United  States  confusion  of  thought, 
manifest  even  in  utterances  emanating  from  the  Department  of 
State,  as  to  the  exact  significance  of  domicile  as  the  basis  of  the 
right  of  diplomatic  protection.^  Both  of  these  Secretaries  of 
State  were  supposed  to  have  been  committed  to  the  doctrine  that 
domicile  afforded  a  criterion  of  national  character;  and  to  ]\Ir. 
Marcy  was  imputed  the  intimation  that  a  declaration  of  inten- 
tion to  become  an  American  citizen  afforded  some  basis  for  the 
according  of  protection.^ 

Professor  Moore  has  removed  cause  for  misapprehension  con- 
cerning both  cases.  He  has  shown  that  with  respect  to  Thrasher's 
Case,  Mr.  Webster  "referred  to  something  which,  although  it 
did  not  necessarily  presuppose  the  existence  of  domicile,  went  in 
some  respects  beyond  it";^  and  that  subsequently,  upon  fuller 
information,  in  a  paper  touching  the  same  case,  he  banished  the 

1  Senate  Ex.  Doc.  No.  5,  32  Cong;.,  1  Sess.,  Moore,  Dig.,  Ill,  818. 

2  House  Ex.  Doc.  1,  33  Cong.,  1  Sess.,  30,  Moore,  Dig.,  Ill,  824. 

3  Statement  in  Moore,  Dig.,  Ill,  817. 

*  Mr.  Frelinghuysen,  Secv.  of  State,  to  Mr.  Wallace,  Minister  to  Turkey, 
March  25,  1884,  and  April  8"^,  1884,  For.  Rel.  1884,  551,  560,  Moore,  Dig.,  Ill, 
339. 

Declared  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Mackey,  Aug.  5,  1885:  "The 
criterion  by  which  Koszta's  and  Burnato's  cases  are  to  be  measured  in  ex- 
amining questions  arising  with  respect  to  aliens  who  have  declared,  but  not 
lawfully  perfected,  their  intention  to  become  citizens  of  the  United  States,  is 
very  simple. 

"When  the  party,  after  such  declaration,  evidences  his  intent  to  perfect 
the  process  of  naturalization  by  continued  residence  in  the  United  States  as 
required  by  law,  this  Government  holds  that  it  has  a  right  to  remonstrate 
against  any  act  of  the  Government  of  original  allegiance  whereby  the  perfec- 
tion of  his  American  citizenship  may  be  prevented  by  force,  and  original 
jurisdiction  over  the  individual  reasserted."  Wharton,  Dig.,  II,  359-360, 
Moore,  Dig.,  Ill,  847. 

^  Moore,  Dig.,  III.  817,  where  the  same  writer  adds  :  "The  early  published 
report  in  Thrasher's  Case  related  to  the  question  whether  he  was  entitled  to 
the  intervention  of  the  United  States,  in  respect  of  his  arrest,  sentence,  and 
imprisonment  in  Cuba  on  a  charge  of  complicity  in  the  Lopez  expedition  of 

686 


THRASHER'S    CASE  [§  396 

suggestion  that  the  acquisition  of  a  foreign  domicile  involved 
expatriation,  or  deprived  the  individual  of  the  protection  of  his 
own  government.^  Respecting  the  position  of  Mr.  Marcy  in 
the  Koszta  Case,  the  same  writer  has  declared  : 

First  of  all,  it  is  seen  that  the  supposition  that  Mr.  Marcy 
held  that  Koszta's  declaration  of  intention  gave  him  an  Ameri- 
can character  and  a  claim  to  the  protection  of  the  United  States 
is  not  only  destitute  of  foundation,  but  is  directly  opposed  to 
his  repeatedly  expressed  opinion.  He  referred  to  the  declara- 
tion of  intention  merely  as  an  evidence  of  domicile.  In  the 
second  place,  there  likewise  disappears  the  supposition  that 
he  held  that  a  domiciled  alien,  even  where  he  had  made  a  dec- 
laration of  intention,  was  entitled  to  the  same  protection  abroad 
as  a  citizen  of  the  United  States,  or  yet  to  protection  against 
the  claims  of  the  country  of  his  original  allegiance  lawfully 
asserted,  either  there  or  in  a  third  country.  In  the  third  place, 
it  appears  by  Mr.  Marcy's  instruction  to  Mr.  Marsh,  of  Aug. 
26,  1853,  that  the  claim  that  Koszta  had,  at  the  time  of  his 
seizur^  an  American  character  was  based,  in  the  first  instance, 
exclusively  upon  his  having  been  duly  admitted  to  American 
protection,  according  to  the  recognized  usage  in  Turkey.^ 

1850-  It  appeared  that  he  had  taken  out  letters  of  domiciHation  in  Cuba, 
and  there  was  reason  to  beUeve  that  he  was  also  domiciled  in  the  island.  The 
process  of  obtaining  such  letters  involved  the  taking  of  an  oath  of  allegiance, 
which  it  was  thought  might  have  had  the  effect  of  making  him  a  Spanish  sub- 
ject and  dissolving  his  allegiance  to  the  United  States.  But,  even  assuming 
that  this  was  not  the  case,  Mr.  Webster  argued  that  if  he  was  domiciled  in 
Cuba  he  was,  as  a  permanent  resident,  peculiarly  subject  to  the  operation  of 
the  laws  there,  and  could  not  ask  the  United  States  to  intervene  to  prevent 
the  imposition  of  any  penalties  which  he  might  justly  have  incurred  by  the 
violation  of  those  laws." 

1  Moore,  Dig.,  Ill,  819,  citing  also  Mr.  Webster's  instruction  to  Mr.  Sharkey, 
of  July  5,  1852,  conveying  his  final  opinion  on  the  question  of  domiciliation, 
and  contained  in  the  summary  of  the  argument  on  domicile  by  Mr.  J.  H.  Ashton 
before  the  Mexican-American  Commission,  Convention  of  July  4,  1868,  Moore, 
Arbitrations,  2701. 

-  Moore,  Dig.,  Ill,  843-844.  Concerning  the  Koszta  case  and  interpreta- 
tions thereof,  see  documents,  id.,  Ill,  820-854. 

The  facts  in  the  Martin  Koszta  Case  were  the  following :  Koszta,  a  Hun- 
garian Revolutionist  in  the  movement  of  1848-1849,  fled  from  Austria  and 
took  refuge  in  Turkey,  from  which  State  his  extradition  was  vainly  sought. 
With  other  refugees  he  was,  however,  confined  at  Kutahia,  but  finally  released, 
with  the  understanding  of  Austria  that  they  should  leave  the  country.  This 
banishment  Austria  accepted  as  a  substitute  for  extradition.  By  reason  of 
his  having  left  Austrian  territory  without  the  consent  of  the  Government  and 
with  an  intention  never  to  return  thereto,  he  came  under  the  operation,  ac- 
cording to  Mr.  Marcy,  of  the  Austrian  statute  so  as  to  be  regarded  as  an  un- 
lawful emigrant  subjected  to  loss  of  all  civil  and  political  rights.  Koszta 
came  to  the  United  States,  where  on  July  31,  1852,  he  declared  his  intention 
to  become  an  American  citizen.  After  a  residence  of  one  year  and  eleven 
months,  he  returned  to  Turkey  on  account  of  alleged  private  business  of  a  tem- 
porary character,  and  thereupon  sought  to  place  himself  under  the  temporary 

687 


§  397]  NATIONALITY 


§  397.   The  Act  of  March  2,  1907. 

The  Act  of  March  2,  1907,  authorized  the  Secretary  of  State  to 
issue,  at  his  discretion,  a  passport  to  a  person  not  a  citizen  of  the 
United  States  who  had  made  a  declaration  of  intention  to  be- 
come such  a  citizen  as  provided  by  law,  and  had  resided  in  the 
United  States  for  three  years,  the  document  "entitling  him  to 
the  protection  of  the  Government  in  any  foreign  country",  pro- 
vided, that  such  passport  should  not  be  valid  for  more  than  six 
months  and  should  not  be  renewed,  and  that  it  should  not  entitle 
the  holder  to  the  protection  of  the  United  States  "  in  the  country 
of  which  he  was  a  citizen  prior  to  making  such  declaration  of 
intention."  ^ 

The  law  conferring  this  authority  was,  however,  repealed  by 
an  Act  of  June  4,  1920.2 

According  to  rules  issued  by  the  Department  of  State  June  1, 
1915,  it  was  announced  that  passports  could  not  be  issued,  under 
the  Act  of  Congress,  to  declarants  who  intended  to  visit  their 
native  lands.^     It  was  ordered  that  before  a  passport  should  be 

protection  of  tlie  American  Consul  at  Smyrna.  Later  the  Consul  and  the 
American  Charge  dAffaires  ad  interim  at  Constantinople  extended  protec- 
tion to  Koszta,  furnishing  him  with  a  so-called  tezkereh  —  a  kind  of  passport 
or  letter  of  safe-conduct.  No  objection  was  made  by  Austria  to  Koszta's 
return  to  Turkey.  While  at  Smyrna,  awaiting,  as  he  alleged,  an  opportunity 
to  return  to  the  United  States,  he  was  seized  by  lawless  men,  thrown  into  the 
sea,  and  immediately  thereafter  taken  up  by  a  boat's  crew,  lying  in  wait  for 
him,  and  belonging  to  the  Austrian  warship  Huszar,  forced  on  board  that 
vessel,  and  there  confined  in  irons.  The  diplomatic  and  consular  representa- 
tives of  the  United  States  sought  in  vain  from  both  Turkish  and  Austrian 
authorities  the  release  of  the  prisoner.  Thereupon  the  U.  S.  S.  St.  Louis 
arrived  at  Smyrna.  The  Commander,  Captain  Ingraham,  after  investigating 
the  case  and  learning  of  a  plan  to  take  Koszta  clandestinely  to  Austrian  terri- 
tory, demanded  his  release,  and  intimated  that  he  should  resort  to  force  if  the 
demand  were  not  complied  with  by  a  certain  hour.  No  force  was  used.  By 
agreement  the  prisoner  was  delivered  to  the  French  Consul-General  to  be 
held  by  him  until  the  United  States  and  \ustria  should  agree  as  to  the  dis- 
position of  the  case.  Koszta  was  ultimately  released  and  returned  to  the 
United  States. 

1  34  Stat.  1228.  See,  in  this  connection,  Report  on  Citizenship  of  the 
United  States,  Expatriation,  and  Protection  Abroad,  by  J.  B.  Scott,  David  J. 
Hill,  and  GaUlard  Hunt,  House  Doc.  No.  326,  59  Cong.,  2  Sess.,  19-22. 

2  See  Act  making  appropriation  for  the  Diplomatic  and  Consular  Service 
for  the  fiscal  year  ending  June  30,  1921,  66  Cong.,  2  Sess.,  Chap.  223. 

^  The  text  of  the  Rules  is  contained  in  American  White  Book,  European 
War,  II,  164-165.  These  rules  were  somewhat  more  rigid  than  certain  others 
announced  by  the  Department  of  State,  Nov.  14,  1913.  Appended  to  the 
Rules  of  June  1,  1915,  was  the  statement  that  "Passports  are  not  issued  to 
declarants  who  are  natives  of  countries  which  are  at  war,  nor  to  declarants 
who  intend  to  visit  belligerent  countries." 

Shortly  after  the  outbreak  of  The  World  War,  it  was  declared  by  the  De- 
partment of  State,  in  instructions  to  the  Embassies  and  Legations  in  Europe, 
that  "special  consular  registration  certificates  may  be  issued  to  wives  of  persons 

688 


EXTRATERRITORIAL    FACTORIES  [§398 

issued  the  following  facts  should  be  established  to  the  satisfaction 
of  the  Secretary  of  State :  (a)  that  the  applicant  had  resided  in 
the  United  States  for  at  least  three  years  as  provided  by  law ; 
(6)  that  he  was  not  then  eligible  under  the  law  for  final  naturaliza- 
tion ;  (c)  that  at  least  six  months  had  elapsed  since  the  appli- 
cant's declaration  of  intention ;  (d)  that  the  applicant  had  not 
previously  applied  for  and  obtained  a  similar  passport  from  the 
Department ;  (c)  that  a  special  and  imperative  exigency  existed 
requiring  the  absence  of  the  applicant  from  the  United  States ;  ^ 
(/)  that  the  applicant  had  not  applied  for  and  obtained  a  passport 
from  any  other  government  after  he  had  declared  his  intention 
to  become  a  citizen  of  the  United  States. 

A^liile  the  enactment  of  the  statute  indicated  no  disposition 
on  the  part  of  the  United  States  to  substitute  domicile  for  alle- 
giance as  the  test  of  national  character  for  purposes  of  diplomatic 
protection  in  times  of  peace,  save  under  the  exceptional  circum- 
stances noted,  it  is  believed  that  the  repeal  of  the  law  was  alto- 
gether desirable. 

11 

§  398.    Extraterritorial  Factories  of  American  Citizens. 

The  Department  of  State  has  been  confronted  with  the  problem 

of  determining  to  what  extent  the  aid  of  the  United  States  should 

in  the  United  States  who  have  resided  here  more  than  three  years  and  have 
made  declarations  of  their  intention  to  become  American  citizens.  Such 
certificates  should  not  describe  the  holders  as  American  citizens,  but  should 
set  forth  their  exact  status."  Telegram  of  Mr.  Lansing,  Acting  Secy,  of  State, 
Sept.  12.  1914,  American  White  Book,  European  War,  II,  155,  156. 

1  In  this  connection  it  was  said  that  "The  burden  of  proof  will,  in  each  case, 
be  upon  the  applicant  to  show  to  the  satisfaction  of  the  Secretary  of  State  that 
there  is  a  necessity  for  his  absence.  The  statement  as  to  such  necessity  must 
be  detailed  and  supported  by  satisfactory'  corroborative  evidence.  Under 
this  rule  passports  will  not  be  granted  to  persons  who  wish  to  go  abroad  as 
commercial  travelers." 

See,  also,  Mr.  L-^nsing,  Acting  Secy,  of  State,  to  the  American  Embassies 
and  Legations  in  Europe,  Sept.  12,  1914,  American  White  Book,  European 
War,  II,  155,  156. 

In  a  communication  of  Feb.  20,  1914,  to  the  American  Consul-General  at 
Shanghai,  it  was  declared  by  Mr.  Moore,  for  the  Secretary-  of  State,  that  the 
Department  of  State  construed  §  1  of  the  Act  of  March  1,  1907,  as  appUcable 
only  to  cases  of  declarants  who,  because  of  some  pressing  necessity,  were 
obliged  to  absent  themselves  from  the  United  States  for  a  brief  period,  and  riot 
to  cases  of  persons  who  sought  to  establish  themselves  abroad  with  the  in- 
tention of  making  a  protracted  stay.  Mr.  Moore  had  reference  to  the  case 
of  Leo  Koeningsberger,  a  native  of  Germany,  who,  some  three  years  after 
having  declared  his  intention  of  becoming  a  citizen  of  the  United  States,  went 
to  China  where  he  desired  to  remain  for  several  years  and  complete  his  nat- 
uralization upon  his  return.  Mr.  Moore  adverted  to  the  fact  also  that  resi- 
dence in  a  foreign  country  where  extraterritorial  privileges  were  enjoyed 
could  not  be  taken  to  satisfy  the  requirements  of  residence  under  the  naturali- 
zation laws  of  the  United  States. 

689 


§  398]  NATIONALITY 

he  accorded  American  citizens  who  have  established  manufac- 
turing plants  with  American  capital  in  foreign  countries.  It 
has  been  perceived  that  in  certain  instances  the  transfer  to  foreign 
territory  of  American  enterprises  with  a  view  to  securing  benefits 
of  certain  preferential  features  of  a  foreign  tariff  law,  has  rendered 
such  concerns  direct  competitors  in  certain  markets  of  American 
firms  in  the  United  States.  Thus,  in  1910,  the  Department  de- 
cided that  firms  which  had  removed  "all  or  a  part  of  their  plants 
from  the  United  States  to  Canada"  were  no  longer  entitled  to  the 
assistance  of  the  Government  so  far  as  their  foreign  factories  were 
concerned.^  It  was  recognized,  however,  that  circumstances 
might  justify  the  extension  of  governmental  assistance  to  an 
extraterritorial  factory  either  established  or  projected  by  Ameri- 
can citizens  who  made  use  of  American  capital.  It  was  declared 
that  where,  for  example,  an  established  manufacturing  enter- 
prise in  the  United  States,  exporting  its  products  to  foreign  coun- 
tries, found  it  expedient  to  meet  competitive  conditions  in  a 
certain  foreign  market  by  establishing  a  branch  therein  for  the 
purpose  of  preempting  the  field  and  stopping  competition,  and 
thus  preserving  and  fostering  the  main  export  business  for  the 
benefit  of  which  the  branch  had  thus  been  established,  there 
would  seem  to  be  reason  for  the  extension  of  the  good  offices 
and  assistance  of  the  foreign  service  of  the  United  States.  It  was 
said  that  such  a  case  was  to  be  clearly  distinguished  from  one 
where  a  foreign  branch  was  a  serious  undertaking  maintained  to 
build  up  a  trade  which  would  compete  with  the  genuine  American 
export  trade,  "  and  might  even  result  in  making  the  branch  in  the 
foreign  country  a  base  for  distributing  foreign-made  goods  to  third 
countries  in  competition  with  American  exports."  ^ 

The  distinction  thus  laid  down  appears  to  be  important.  It 
reveals  the  fact  that  when  American  enterprise  in  foreign  terri- 
tory opposes  the  economic  as  well  as  political  interests  of  the 
United  States,  the  American  nationality  of  the  actors  is  a  matter 
of  subordinate  consideration.  The  strength  of  the  equity  of 
those  who  invoke  the  extension  of  the  good  offices  of  the  United 

'  Mr.  Knox,  Secy,  of  State,  to  American  Diplomatic  and  Consular  Officers, 
March  24,  1910,  quoting  Circular  Instruction  to  Consular  Officers,  of  April  30, 
1906,  Dept.  of  State,  Circulars  Relating  to  Citizenship,  1916,  30-32. 

2  Id.  "In  cases  of  this  kind,"  it  was  said,  "the  department  must  regard 
the  enterprise  as  essentially  foreign  from  the  point  of  view  of  international 
competition,  and,  therefore,  the  activities  of  the  diplomatic  and  consular 
officers  in  behalf  of  the  American  citizens  who  are  concerned  in  the  establish- 
ment of  such  extraterritorial  factories  should  be  limited  to  matters  of  courtesy 
and  the  supplying  of  general  information  only." 

690 


EXTRATERRITORIAL    FACTORIES  [§398 

States  depends  not  only  upon  the  allegiance  in  name  and  in  law 
of  the  individuals  concerned,  but  also  upon  their  abstention 
from  commercial  activities  deemed  to  be  at  variance  with  the 
general  economic  welfare  of  the  State. ^ 

^  The  rule  of  policy  enunciated  by  the  Department  of  State  is  in  reality  an 
appUcation  of  the  fundamental  principle  observed  in  the  treatment  of  claims 
of  nationals,  and  which  is  deemed  to  justify  a  withholding  of  interposition 
whenever  the  conduct  of  the  claimant  is  inconsistent  with  his  allegiance  to 
the  United  States.  Dept.  of  State,  Claims  Circular,  1919,  Revision  of  Jan.  30, 
1920,  Section  7.  The  significant  thing  is  that  his  conduct  is  deemed  to  possess 
such  a  character  when  it  opposes  the  obvious  economic  interests  of  the  United 
States.  The  reaUty  of  commercial  disloyalty  to  the  nation  is  perceived,  and 
a  penalty  applied  which  is  appropriate  to  the  act. 


TITLE   E 

AMERICAN  PASSPORTS 

1 
§  399.   In  General. 

"A  passport  is  the  accepted  international  evidence  of 
nationality;  in  its  usual  form,  it  certifies  that  the  person  de- 
scribed in  it  is  a  citizen  or  subject  of  the  country  by  whose  authority 
it  is  issued,  and  requests  for  him  permission  to  come  and  go,  as 
well  as  lawful  aid  and  protection."  ^  A  passport  is  the  only  per- 
missible certification  of  American  nationality.^  While  the  United 
States  does  not  complain  of  the  exaction  by  a  foreign  State  of 

1  The  language  of  the  text  is  that  in  Moore,  Dig.,  Ill,  856. 

"  Other  documents,  such  as  safe-conducts,  letters  of  protection,  and  special 
passes  for  individuals,  and  even  passes  for  vessels,  are  referred  to  as  passports, 
and  not  altogether  inaccurately,  since  their  object  is  to  secure  for  the  particular 
person  or  property  freedom  of  movement  and  lawful  protection.  But  these 
documents  are  used  chiefly  in  war,  and  are  granted  on  the  strength  of  the 
personality  rather  than  of  the  nationality  of  the  individual,  being  issued,  ac- 
cording to  the  circumstances  of  the  case,  even  to  enemies."     Id. 

See,  generally,  Gaillard  Hunt,  The  American  Passport,  Washington,  1898; 
Rules  Governing  the  Granting  and  Issuing  of  Passports  in  the  United  States, 
issued  by  President  Wilson  Jan.  24,  1917;  proclamation  and  executive  order 
of  President  Wilson,  Aug.  8,  1918;  President  Wilson,  message  to  the  Congress, 
Aug.  25,  1919,  respecting  the  continuance  of  the  passport-control  system, 
Senate  Doc.  No.  79,  66  Cong.,  1  Sess. 

A  passport,  as  defined  by  Mr.  Gaillard  Hunt,  "is  a  document  issued  by  the 
Secretary  of  State,  or,  under  his  authority,  by  a  diplomatic  or  consular  officer 
of  the  United  States  abroad,  to  a  citizen  of  the  United  States,  stating  his 
citizenship,  and  requesting  for  him  free  passage  and  all  lawful  aid  and  pro- 
tection during  his  travels  or  sojourn  in  foreign  lands."     American  Passport,  4. 

2  Mr.  Adee,  Acting  Secy,  of  State  to  Mr.  Terres,  No.  142,  Sept.  26,  1893, 
For.  Rel.  1894,  346.  See,  also,  Mr.  Bavard,  Secy,  of  State,  to  Mr.  McLane. 
Minister  to  France,  July  2,  1885,  For.  Rel,  1885,  373,  Moore,  Dig.,  Ill,  857. 

It  may  be  observed  that  American  consular  officers  have  been  authorized 
to  issue  to  American  citizens  registered  at  consulates  certificates  of  registra- 
tion. Such  documents  do  not  certify  that  the  registrants  are  citizens  of  the 
United  States,  but  merely  that  they  have  registered  as  such.  The  same 
proofs  of  citizenship  are,  however,  required  in  applications  for  registration  as 
are  demanded  in  applications  for  passports.  Registration  certificates  are  in- 
tended for  use  with  local  officials  and  not  for  purposes  of  travel.  For  this 
paragraph  the  author  acknowledges  his  indebtedness  to  Mr.  R.  W.  Flournoy, 
Jr.     See  Consuls,  Miscellaneous  Duties,  infra,  §  488. 

692 


IN    GENERAL  [§399 

such  a  certification  of  American  citizens  within  Its  domain,  objec- 
tion is  raised  when  the  exaction  constitutes  a  discrimination 
against  such  individuals.^ 

According  to  the  existing  law  the  right  to  issue  passports  In 
the  United  States  Is  lodged  solely  in  the  Secretary  of  State,  who 
Is  also  empowered  to  permit  the  issuance  and  verification  of  pass- 
ports in  foreign  countries  by  American  diplomatic  and  consular 
officers,  and  by  the  chief  or  other  executive  officer  in  the  insular 
possessions  of  the  United  States,  and  under  such  rules  as  the 
President  may  designate  and  prescribe.^ 

The  Act  of  June  15,  1917,  established  as  a  condition  precedent 
to  the  Issuance  of  a  passport  to  any  person  by  or  under  the 
authority  of  the  United  States,  the  subscription  to  and  submis- 
sion by  the  applicant  of  a  written  application  duly  verified  by 
his  oath  before  a  person  authorized  and  empowered  to  admin- 
ister oaths,  and  required  that  such  application  should  contain  a 
true  recital  of  each  and  every  matter  of  fact  which  might  be  re- 
quired by  law  or  by  any  rules  authorized  by  law  to  be  stated  as  a 
prerequisite  to  the  Issuance  of  a  passport.^ 

Passports  are  not  issued  by  American  diplomatic  and  con- 
sular officers  abroad,  except  In  cases  of  emergency.  A  citizen 
who  is  abroad  and  desires  to  procure  a  passport  must  apply  there- 
for through  the  nearest  diplomatic  or  consular  officer  to  the  Sec- 
retary of  State.^  Where,  however,  inconvenience  or  hardship 
would  result  from  failure  of  the  applicant  entitled  to  a  passport 
to  receive  one  at  once,  a  diplomatic  officer,  or  a  consular  officer 
duly  authorized  by  the  Secretary  of  State,  may  issue  an  emergency 
passport  good  for  a  period  not  to  exceed  six  months,  and  to  be 
used  for  a  stated  purpose.  Such  a  passport  may  be  issued  only 
when  It  Is  clearly  shown  that  the  person  applying  therefor  Is 

1  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Muruaga,  Spanish  Minister,  May  19, 
1886,  MS.  Notes  to  Spain,  X,  420,  Moore,  Dig.,  Ill,  859. 

2  Rev.  Stat.  §  4075,  as  amended  by  the  Act  of  June  14,  1902,  32  Stat.  386, 
U.  S.  Comp.  Stat.  1918,  §7623;  also  Rev.  Stat.  §4078.  See,  also.  Rules 
Governing  the  Granting  and  Issuing  of  Passports  in  the  United  States,  Jan.  12, 
1915,  enclosed  in  circular  to  American  Diplomatic  and  Consular  Officers,  Feb. 
8,  1915,  American  White  Book,  European  War,  II,  158-161;  Dept.  of  State, 
Circulars  Relating  to  Citizenship,  1916,  52. 

3  Chap.  30,  title  IX,  §  1,  40  Stat.  227,  U.  S.  Comp.  Stat.  1918,  §  7528a. 
According  to  the  Act  of  June  4,  1920,  the  validity  of  a  passport  or  of  a  visa 

is  limited  to  two  years,  unless  the  Secretary  of  State  limits  the  validity  of 
either  of  such  documents  to  a  shorter  period.     66  Cong.,  2  Sess.,  Chap.  223. 

*  Rules  Governing  the  Granting  and  Issuing  of  Passports  in  the  United 
States,  January  12,  1915,  American  White  Book,  European  War,  II,  160. 

Concerning  Applications  for  Passports,  see,  id. ;  also  Rules  Governing  the 
Granting  and  Issuing  of  Passports  to  Those  Who  Have  Declared  Their  In- 
tention to  Become  Citizens  of  the  United  States,  June  1,  1915,  id.,  II,  164. 

693 


§  399]  AMERICAN   PASSPORTS 

about  to  proceed  to  a  country  to  obtain  admission  into  which 
a  passport  is  obligatorj\^ 

Upon  the  outbreak  of  The  World  War  the  Department  of 
State  authorized  American  embassies  and  legations  in  Europe 
"to  issue  emergency  passports  to  American  citizens  who  request 
them."  ^  Such  agencies  were  later  instructed  to  exercise  greatest 
caution  in  issuing  such  passports,  and  to  require  of  each  appli- 
cant "  unquestionable  evidence  of  his  citizenship  and  identity."  ^ 

In  accordance  with  an  executive  order  of  January  12,  1915, 
the  Department  of  State  duly  announced  that  a  passport  expires 
six  months  from  the  date  of  its  issuance,  but  that  a  new  passport 
would  be  issued  upon  a  new  application,  accompanied  by  the  old 
passport.  Passports,  it  was  said,  were  not  renewed  by  the 
Department,  but  might  be  renewed  for  a  period  of  six  months 
by  presentation,  when  about  to  expire,  to  a  diplomatic  or  principal 
consular  officer  of  the  United  States,  together  with  a  sworn  state- 
ment of  the  countries  which  the  holder  expected  to  visit  and  the 
objects  of  his  visits  thereto.  No  passport  was  to  be  renewed 
more  than  twice  .^ 

^  Circular  Instructions  to  American  Diplomatic  and  Consular  Officers, 
April  19,  1907,  pursuant  to  an  executive  order  of  April  6,  1907,  For.  Rel.  1907, 

I,  13-15. 

The  same  instructions  provide  that  emergency  passports  "may  be  issued 
for  use  with  the  local  authorities  only  in  case  such  authorities  will  not  accept 
as  evidence  of  a  right  to  recognition  as  an  American  citizen  the  certificate 
of  registration  provided  for  in  paragraph  172  of  the  Consular  Regulations,  as 
prescribed  in  the  executive  order  of  April  8,  1907."  Concerning  the  Regis- 
tration of  American  citizens,  see  Instructions  to  American  Diplomatic  and 
Consular  Officers,  April  19,  1907,  For.  Rel.  1907,  I,  6. 

See,  also,  concerning  emergency  passports,  Mr.  Bacon,  Acting  Secy,  of 
State,  to  Mr.  Egan,  Minister  to  Denmark,  July  8,  1908,  For.  Rel.  1908,  255. 

It  may  be  observed  that  §  4075,  Rev.  Stat,  provides  that  "when  a  legation 
of  the  United  States  is  established  in  any  country,  no  person  other  than  the 
diplomatic  representative  of  the  United  States  at  such  place  shall  be  permitted 
to  grant  or  issue  any  passport,  except  in  the  absence  therefrom  of  such  repre- 
sentative." 

^  Telegram  of  Mr.  Bryan,  Secy,  of  State,  to  the  American  Embassies  and 
Legations  in  Europe,  Aug.  1,  1914,  American  WTiite  Book,  European  War, 

II,  155. 

Shortly  after  the  outbreak  of  The  World  War  in  1914,  it  was  in  many  cases 
difficult  for  American  citizens  to  go  to  embassies  or  legations  in  order  to  obtain 
emergency  passports.  For  that  reason  consular  officers  were  given  authority 
to  issue  them.  That  authority  was  subsequently  withdrawn.  Consuls, 
Miscellaneous  Duties,  infra,  §  488. 

^  Circular  Instructions  to  American  Diplomatic  and  Consular  Officers,  Dec. 
21,  1914,  American  White  Book,  European  War,  II,  156;  also  telegram  of 
Mr.  Lansing,  Acting  Secy,  of  State,  to  the  American  Embassies  and  Lega- 
tions in  Europe,  Sept.  12,"  1914,  id.,  II,  155. 

*  Circular  Instructions  to  American  Diplomatic  and  Consular  Officers,  Feb. 
8,  1915,  American  White  Book,  European  War,  II,  158. 

"When  a  holder  of  a  passport  finds  it  necessary,  after  leaving  the  United 
States,  to  visit  a  country  or  countries  not  named  in  the  passport,  he  may  have 
it  amended  by  a  diplomatic  or  consular  officer  of  the  United  States."     Notice 

694 


TO   WHOM    ISSUED  [§400 

2 

§  400.   To  Whom  Issued. 

Passports  are  furnished  for  the  use  of  native  citizens,  naturalized 
citizens,  persons  claiming  citizenship  through  the  naturalization 
of  parent  or  husband,  as  well  as  persons  residing  in  the  insular 
possessions  of  the  United  States  and  owing  allegiance  to  it.^ 

Section  4076,  Revised  Statutes,  as  amended  by  the  Act  of  Con- 
gress of  July  14,  1902,  forbade  the  issuance  of  passports  to  persons 
other  than  those  owing  allegiance,  whether  citizens  or  not,  to  the 
United  States.^  The  Act  of  March  2,  1907,  effected  a  slight 
change,  in  clothing  the  Secretary  of  State  with  discretionary 
power  to  issue  passports  under  special  circumstances  to  persons  not 
citizens  of  the  United  States,  who  had  made  a  declaration  of  in- 
tention to  become  such,  and  had  resided  within  the  United  States 
three  years.^  The  occasions  for  the  issuance  of  passports  under 
this  Act,  which  was  repealed  June  4,  1920,  have  been  observed.^ 

American  passports  may  be  issued  to  women ;  ^  also  to  minor 
children.^ 

of  Department  of  State,  May  20,  1915,  id.,  II,  164;  Consuls,  Miscellaneous 
Duties,  infra,  §  488. 

^  Concerning  the  conditions  precedent  to  the  granting  of  passports  to 
persons  within  the  foregoing  classes,  see  Rules  of  Jan.  12,  1915,  American 
White  Book,  European  War,  II,  160 ;  also  Circular  Instructions  to  American 
Diplomatic  and  Consular  Officers,  Dec.  21,  1914,  id.,  II,  156;  Rules  Govern- 
ing the  Granting  and  Issuing  of  Passports  in  the  United  States,  Jan.  24,  1917. 

See,  also.  Double  Allegiance,  supra,  §§372-375;  Effect  of  Parents'  Natu- 
ralization on  Infants,  supra,  §  367 ;  Residence  of  a  Naturalized  American 
Citizen  in  a  Foreign  Country,  supra,  §  384 ;  Loss  of  Right  to  National  Pro- 
tection, supra,  §§  388-393. 

2  32  Stat.  386.  Rules  Governing  the  Granting  and  Issuing  of  Passports  in 
the  United  States,  Jan.  24,  1917. 

3  §  1,  34  Stat.  1228. 

*  Concerning  the  granting  of  passports  under  this  section,  see  The  Act  of 
March  2,  1907,  supra,  §  397  ;  also  Rules  Governing  the  Granting  and  Issuing 
of  Passports  to  Those  who  have  Declared  Their  Intention  to  Become  Citizens 
of  the  United  States,  June  1,  1915,  American  White  Book,  European  War,  II, 
164. 

*  "  While  a  wife  may,  as  is  shown  in  the  previous  section,  be,  for  convenience, 
included  in  her  husband's  passport,  a  woman,  whether  unmarried  or  married, 
or  a  widow,  may,  if  a  citizen  of  the  United  States,  obtain  a  passport  on  her 
own  account."     Moore,  Dig.,  Ill,  882. 

See,  also,  §  8,  Rules  of  Jan.  12,  1915  American  White  Book,  European  War, 
II,  161.  According  to  §  12,  it  is  declared  '■  When  the  applicant  is  accompanied 
by  his  wife,  minor  children,  and  maid-s3rvant  whc  is  a  citizen  of  the  United 
States,  it  will  be  sufficient  to  state  the  fact,  giving  their  names  in  full,  the 
dates,  and  places  of  their  births,  and  the  allegiance  of  the  servant,  when  one 
passport  will  suffice  for  all.  For  a  man-servant  or  any  other  person  in  the 
party  a  separate  passport  will  be  required.  A  woman's  passport  may  include 
her  minor  children  and  maid-servant  under  the  above  named  conditions. 
(The  term  'maid-servant'  does  not  include  governess,  tutor,  pupil,  companion, 
or  person  holding  like  relation  to  the  applicant  for  a  passport.)"  Also  §  9 
of  Rules  of  Jan.  24,  1917. 

«  Mr.  White,  American  Ambassador  to  Italy,  to  the  Secretary  of  State, 

695 


§401]  AMERICAN   PASSPORTS 


§  401.    Grounds  of  Refusal. 
The  issuance  of  passports  is  a  discretionary  act  on  the  part 

of  the  Secretary  of  State,  and  he  may,  for  reasons  deemed  by 
him  to  be  sufficient,  direct  the  refusal  of  a  passport  to  an  American 
citizen  ;  but  a  passport  is  not  to  be  refused  to  an  American  citizen, 
even  if  his  character  is  doubtful,  unless  there  is  reason  to  believe 
he  will  put  the  passport  to  an  unlawful  use.^  A  passport  has  been 
refused  where  the  evidence  showed  that  the  applicant  was  en- 
gaged in  "  blackmailing  projects,  and  was  disturbing,  or  endeavor- 
ing to  disturb,  the  relations  of  this  Country  with  the  representatives 
of  foreign  countries."  ^ 

In  the  course  of  The  World  War  the  Secretary  of  State  exercised 
more  extensively  than  before  his  discretionary  authority  to  refuse 
passports.  During  the  earlier  part  of  the  conflict,  the  obtaining 
of,  and  the  attempting  to  obtain,  American  passports  for  pur- 
poses of  espionage  and  participation  in  belligerent  activities  ren- 
dered imperative  the  taking  of  great  precautions  in  the  issuance 
of  such  documents.  Among  those  taken  was  the  establishment 
of  a  rule  not  to  issue  passports  for  u^e  in  the  belligerent  countries 
except  in  cases  of  reasonable  necessity.  WTien  the  United  States 
itself  became  a  belligerent,  more  stringent  rules  were  made  and 
passports  not  issued  for  use  in  any  country  except  in  cases  of  such 
necessity.^ 

A  passport  is  necessarily  refused  when  the  applicant  is  deemed 
to  have  expatriated  himself.  Again,  a  passport  is  withheld  from  a 
native  or  naturalized  citizen  who,  on  account  of  his  domicile  abroad, 
or  for  any  other  reason,  is  deemed  to  have  lost  his  right  to  pro- 
tection by  the  United  States.^ 

April  11,  1906,  For.  Rel.  1906,  II,  912;  also  important  statement  in  Moore, 
Dig.,  Ill,  883.  See  Grounds  of  Refusal,  infra,  §401;  Double  Allegiance, 
supra,  §§  372-375. 

1  The  language  of  the  text  is  that  of  Mr.  Wilson,  Acting  Secy,  of  State,  to 
Mr.  Beaupre,  Minister  to  the  Argentine  Republic,  No.  120,  April  27,  1907, 
For.  Rel.  1907,  II,  1082. 

2  Id.  Also  same  to  Mr.  Giddings,  Consul-General  at  Cairo,  Jan.  31,  1907, 
id.,  II,  1081;  Memorandum  of  the  Solicitor  of  the  Dept.  of  State,  respecting 
the  same  case,  Jan.  2,  1907,  id.,  II,  1079.  See,  also,  instructive  note  of  Mr. 
Adee,  Acting  Secy,  of  State,  to  Mr.  Conger,  Minister  to  China,  Aug.  24,  1899, 
For.  Rel.  1899,  186-187,  Moore,  Dig.,  Ill,  922-923;  Opinion  of  Mr.  Knox, 
Atty.-Gen.,  23  Ops.  Attys.-Gen.,  509,  Moore,  Dig.,  Ill,  921. 

^  For  the  paragraph  in  the  text  the  author  acknowledges  his  indebtedness 
to  Mr.  R.  W.  Flournoy,  Jr. 

*  Loss  of  Right  to  National  Protection,  supra,  §§  388-393.  Concerning  the 
Cancellation  of  Passports  procured  by  false  representations  or  under  circum- 
stances when  the  retention  of  American  citizenship  at  the  time  of  issuance 
was  doubtful,  see  documents  in  Moore,  Dig.,  Ill,  983-984. 

696 


EVIDENTIAL   FORCE  f§  402 

4 
INTERNATIONAL   EFFECT 

a 

§  402.    Evidential  Force. 

On  the  theory  that  a  State  is  the  sole  and  ultimate  judge  of 
the  "citizenship  of  its  owti  dependents,  and  is,  in  its  sovereign 
capacity,  competent  to  certify  to  the  fact ",  the  United  States 
demands  that  an  American  passport  be  respected  abroad  as 
prima  jacie  evidence  of  the  citizenship  of  the  bearer.^  Thus  the 
Department  of  State  asserts  that  it  is  not,  in  the  first  instance, 
incumbent  upon  the  bearer  to  prove  his  citizenship  by  extraneous 
evidence  at  the  will  of  the  country  of  sojourn,  nor  upon  the  United 
States  to  support  its  official  attestation  of  the  fact  of  citizenship 
by  collateral  proof.^  In  case  a  foreign  government  has  reason 
to  believe  that  a  passport  has  been  fraudulently  issued,  or  is  held 
by  a  person  other  than  the  one  to  whom  it  was  issued,  or  that  the 
holder  w^as  fraudulently  naturalized  within  the  United  States, 
it  is  declared  that  the  matter  should  be  brought  to  the  attention 
of  the  American  diplomatic  officer  accredited  to  the  State  making 
complaint,  who  will  render  the  necessary  assistance  (if  need  be 
in  conjunction  with  the  Department  of  State),  in  examining  the 
authenticity  of  the  document.^  It  is  believed  that  upon  proof 
of  fraud,  there  would  be  no  disposition  on  the  part  of  the  United 
States  to  regard  the  passport  other  than  as  a  nullity.^ 

^  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Tripp,  Minister  to  Austria-Hungary, 
Sept.  4,  1893,  in  the  Case  of  John  Benich,  For.  Rel.  1893,  23,  24,  Moore,  Dig., 
Ill,  987;  Case  of  Solomon  Czosnek,  For.  Rel.  1895,  I,  13-20,  Moore,  Dig., 
Ill,  989-991 ;  Mr.  Olney,  Secy,  of  State,  to  Mr.  Risley,  Minister  to  Denmark, 
Nov.  28,  1896,  For.  Rel.  1897,  118,  Moore,  Dig.,  Ill,  986. 

It  may  be  observed  that  an  American  passport  does  not  purport  to  certify 
that  the  bearer  is  an  American  citizen.  It  simply  attests  the  citizenship  of 
the  person  named  and  described  therein  and  whose  signature  is  appended 
thereto. 

In  a  case  decided  by  the  Supreme  Court  of  the  United  States  in  1835, 
Urtetiqui  v.  D'Arbel,  9  Pet.  692,  699,  when  there  were  no  laws  regulating  the 
issuance  of  passports,  it  was  declared  that  a  passport  issued  by  the  Secretary 
of  State  was  not  evidence  in  an  American  court  that  the  person  to  whom  it 
was  given  was  a  citizen  of  the  United  States.  See,  also.  In  re  Gee  Hop,  71  Fed. 
274. 

2  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Tripp,  Minister  to  Austria-Hungary, 
Sept.  4,  1893,  For.  Rel.  1893,  23,  24,  Moore,  Dig.,  Ill,  987. 

^Id.  See,  also,  Mr.  Foster,  Secv.  of  State,  to  Mr.  White,  Minister  to  Russia, 
Nov.  26,  1892,  For.  Rel.  1893,  530,  Moore,  Dig.,  Ill,  986;  Mr.  Uhl,  Acting 
Secy,  of  State,  to  Mr.  Hengelmiiller,  Austrian-Hungarian  Minister,  May  22, 
1895,  MS.  Notes  to  Austrian  Legation,  IX,  217,  Moore,  Dig.,  Ill,  1000. 

*  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Jackson,  Jan.  10,  1854,  MS.  Inst. 
Austria,  I,  89,  Moore,  Dig.,  Ill,  1000.  Also  Impeachment  of  Naturalization, 
supra,  §§  370-371. 

697 


§402]  AMERICAN   PASSPORTS 

I  When,  according  to  a  naturalization  treaty,  recognition  of  a 
change  of  allegiance  is  made  dependent  upon  both  naturalization 
and  a  residence  of  five  years  within  the  domain  of  the  State  of 
adoption,  the  Department  of  State  has  admitted,  that  in  the 
absence  of  disrespect  to  a  passport  as  yrima  facie  evidence  of 
citizenship,  it  is  not  easy  to  dispute  the  claim  of  a  contracting 
State  of  a  right  to  ascertain  by  some  separate  process  whether 
the  requirement  as  to  residence  has  been  fulfilled,  in  the  case 
of  a  person  capable  of  acquiring  citizenship  in  less  time  than  five 
years,  and  in  view  of  the  fact  that  a  passport  does  not  disclose 
the  statute  under  which  naturalization  was  effected.^ 

b 

§  403.   Visa. 
IVIr.  Gaillard  Hunt  has  said  that 

Some  foreign  countries,  before  recognizing  the  validity  of 
a  passport,  require  that  a  visa,  or  vise,  shall  be,  or  shall  have 
been,  afiixed  to  it.  This  is  an  endorsement  denoting  that  the 
passport  has  been  examined  and  is  authentic,  and  that  the 
bearer  may  be  permitted  to  proceed  on  his  journey.  Sometimes 
it  is  required  that  the  visa  be  afiixed  in  the  country  where  the 
passport  is  issued,  by  a  diplomatic  or  consular  officer  of  the 
government  requiring  it ;  sometimes  simply  by  such  oflBcer 
anyw^here ;  sometimes  at  the  frontier  of  the  country  to  which 
admission  is  sought.  It  may  even  be  required  from  a  diplo- 
matic or  consular  ofiicer  of  the  government  which  issued  the 
passport.^ 

While  the  United  States  does  not  dispute  the  right  of  a  foreign 
State  to  require  that  a  visa  be  affixed  to  an  American  passport, 
objection  is  made  if  American  citizens  are  subjected  to  discrimi- 
nation in  the  amount  of  the  charge  exacted.^    The  Department 

^  Mr.  OIney,  Secy,  of  State,  to  Mr.  Jackson,  Charge  at  Berlin,  No.  544, 
Feb.  13,  1896,  For.  Rel.  1895,  I,  520,  522-523,  Moore,  Dig.,  Ill,  993.  The 
class  of  persons  especially  referred  to  were  minors,  honorably  discharged 
soldiers,  merchant  seamen,  naturalized  under  special  provisions  of  law  on 
less  than  five  years'  residence. 

2  The  American  Passport,  5,  quoted  in  Moore,  Dig.,  Ill,  994,  and  citing 
Dana's  Wheaton,  p.  298,  note. 

See,  also,  notice  respecting  the  visas  of  passports  issued  by  the  Department 
of  State,  May  20,  1915,  American  White  Book,  European  War,  II,  163. 

^  Mr.  Frelinghuvsen,  Secv.  of  State,  to  Mr.  Foster,  Minister  to  Spain, 
March  12,  1884,  MS.  Inst. 'Spain,  XIX,  504,  Moore,  Dig.,  Ill,  999;  Mr. 
Bayard,  Secv.  of  State,  to  Mr.  Muruaga,  Spani.sh  Minister,  May  19,  1886, 
MS.  Notes  to  Spain,  X,  420,  Moore.  Dig.,  Ill,  999. 

By  the  Act  of  June  4,  1920,  66  Cong.,  2  Sess.,  Chap.  223,  from  and  after 
July  1,  1920,  the  fee  for  executing  each  application  for  a  passport  was  fixed 

698 


LOCAL   PAPERS  [§404 

of  State  objects,  moreover,  to  any  indorsement  on  a  passport 
serving  to  deface  it  or  to  impair  its  usefulness,  by  a  representa- 
tive of  a  foreign  government  who,  for  any  reason,  declines  to  affix 
a  visa  to  the  document.^ 

The  Department  of  State  at  one  time  lodged  vigorous  protest 
against  the  practice  of  Russian  consuls  in  the  United  States,  of 
interrogating  American  citizens  as  to  their  race  and  religion,  and, 
upon  the  ascertainment  thereof,  of  denying  to  persons  of  Jewish 
faith  the  authentication  of  passports  for  use  in  Russia.^ 

5 

§  404.   Local  Papers. 

Certain  foreign  countries  require  an  alien,  upon  entering  the 
national  domain,  to  deposit  his  passport  with  the  local  authorities 
or  with  his  diplomatic  or  consular  representative,  and  thereupon 
to  secure  a  permit  to  sojourn  or  travel.  Such  a  permit  was  given 
in  Russia  under  imperial  authority  to  the  holder  of  a  passport 
duly  visaed  when  entering  the  empire.^  In  Turkey  a  so-called 
tezkereh  is  issued  which  is  considered  as  a  safe-conduct.^ 

When,  as  sometimes  happens  in  Latin-American  countries, 
an  American  citizen  is  obliged  to  deposit  his  passport  with  his 
legation  or  consulate,  and  receive  a  certificate  of  registry,  in  the 
native  tongue,  the  Department  of  State  has  announced  that  the 

at  one  dollar,  and  the  fee  for  each  passport  issued  to  a  citizen  or  person  owing 
allegiance  to  or  entitled  to  the  protection  of  the  United  States  was  fixed  at 
nine  dollars. 

1  Mr.  Runyon,  Ambassador  to  Germany,  to  Baron  Rotenhan,  Sept.  2,  1895, 
For.  Rel.  1895,  I,  540,  Moore,  Dig.,  Ill,  "997-998 ;  also  For.  Rel.  1896,  517- 
519. 

2  President  Cleveland,  Annual  Message,  Dec.  2,  1895,  For.  Rel.  1895,  I, 
xxxii,  Moore,  Dig.,  Ill,  996;  see,  also,  documents  in  Moore,  Dig.,  II,  8-12, 
especially  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Breckinridge,  Minister  to 
Russia,  Aug.  22,  1895,  For.  Rel.  1895,  II,  1067,  Moore,  Dig.,  II,  11. 

It  may  be  observed  that  the  refusal  of  Russia  to  honor  passports  of  American 
citizens  of  Jewish  faith  was  a  reason  which  caused  President  Taft  to  have  the 
American  Ambassador  at  St.  Petersburg  notify  the  Russian  Government, 
Dec.  17,  1911,  of  the  intention  of  the  United  States  to  terminate  the  operation 
of  the  treaty  of  commerce  and  navigation  with  Russia  of  Dec.  18,  1832,  and 
which  caused  the  Congress  to  pass  a  joint  resolution  ratifying  the  action  taken 
by  the  President.  The  resolution  was  approved  by  President  Taft,  Dec.  21, 
1911.     See  editorial  comment,  Am.  J.,  VI,  186-191. 

^  Notice  of  Department  of  State,  Aug.  1,  1901,  in  which  it  is  also  stated  that 
at  least  twenty-four  hours  before  departure  from  Russia  the  permit  of  sojourn 
should  be  presented  to  the  authorities,  whereupon  "a  passport  of  departure 
will  be  granted  and  the  original  passport  returned."  For.  Rel.  1901,  453, 
Moore,  Dig.,  Ill,  994. 

*  Documents  in  Moore,  Dig.,  Ill,  1004-1006,  especially  Mr.  Bayard,  Secy. 
of  State,  to  Mr.  Straus,  Minister  to  Turkey,  No.  14,  May  10,  1887,  MS.  Inst. 
Turkey,  IV,  573. 

699 


§  404]  AMERICAN   PASSPORTS 

certification  must  in  no  sense  partake  of  the  nature  of  a  passport, 
attesting  the  nationality  of  the  bearer,  but  must  be  simply  either 
a  certificate  of  the  deposit  of  the  passport  and  of  the  registration 
of  the  individual,  or  an  indorsement  on  the  passport  itself  certify- 
ing what  that  document  purports  to  attest.  WTiatever  certifi- 
cate is  given  must  be  predicated  upon  a  regular  passport  and  not 
issued  in  lieu  thereof.^ 

6 
WAR  REGULATIONS 

a 

§  405.   In  General. 

A  State  engaged  in  war  may  with  reason  adopt  extraordinary 
precautions  respecting  the  entering  and  departing  from  its 
territory  of  both  aliens  and  nationals.^  Passports  duly  visaed 
may  be  required  of  all  persons  seeking  admission  from  a  foreign 

1  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Buchanan,  Minister  to  the  Argentine 
RepubHc,  No.  24,  Aug.  15,  1894,  For.  Rel.  1894,  19,  Moore,  Dig.,  Ill,  1007 ; 
Mr.  Sherman,  Secy,  of  State,  to  Mr.  Stuart,  Minister  to  Uruguay,  May  25, 
1897,  For.  Rel.  1897,  593,  594,  Moore,  Dig.,  Ill,  1008. 

Respecting  the  use  in  China  of  travel  certificates  and  transit  passes  as  well 
as  passports,  see  Moore,  Dig.,  Ill,  1009-1015  and  documents  there  cited. 

Respecting  the  certification  by  American  consular  officers  in  Italy  of  Italian 
or  French  translations  of  American  passports,  and  the  desirability  that  Ameri- 
can travelers  in  that  country  provide  themselves  with  livrets  d'identite,  see 
For.  Rel.  1908,  482-483. 

Concerning  the  Registration  of  American  Citizens  Abroad,  see  Consuls, 
Miscellaneous  Duties,  infra,  §  488. 

Special  Passports.  A  special  passport  limited  to  the  case  of  a  person  going 
abroad  in  the  fulfillment  of  some  official  trust  or  duty,  and  necessary  as  a  certif- 
ication of  the  individual's  public  character  is,  on  appropriate  occasions,  issued 
by  the  Secretary  of  State,  but  not  by  American  agents  abroad.  Mr.  Olney, 
Secy,  of  State,  to  Mr.  Wagner,  Nov.  25,  1895,  206  MS.  Dom.  Let.  200,  Moore, 
Dig.,  Ill,  1002 ;  Mr.  Hay,  Secy,  of  State,  to  Mr.  Storer,  No.  313,  March  25, 
1901,  MS.  Inst.  Spain,  XXIII,  117,  Moore,  Dig.,  Ill,  1003  ;  also  statement,  id., 
1001. 

"Safe  conducts,  in  a  form  similar  to  that  of  special  passports,  have  also 
been  issued  to  aliens,  especially  as  bearers  of  despatches. 

"So,  also,  letters  of  safe  conduct,  commonly  called  passports,  are  given  to 
foreign  ministers  traveling  in  or  departing  from  the  United  States."  Moore, 
Dig.,  Ill,  1002,  citing  Hunt,  American  Passports,  7-35. 

"During  the  recent  war  the  Department  of  State  adopted  the  practice  of 
European  Governments  in  issuing  to  diplomatic  and  principal  consular  officers 
documents  known  as  'diplomatic  passports.'  They  are  in  form  similar  to 
'special  passports',  but  bear  the  heading  ' Passeport  Diplomatique'  in  red  ink, 
according  to  the  European  custom.  These  documents  insure  to  the  bearers 
unusual  courtesies  and  facilities."  Communication  of  Mr.  R.  W.  Flournoy, 
Jr.,  to  the  author,  Sept.  20,  1920. 

^  The  rigor  of  the  regulations  of  the  United  States  during  the  Civil  War  is 
fully  narrated  in  Moore,  Dig.,  Ill,  1015-1021. 

See,  also,  War,  Pacific  Intercourse  of  Belligerents,  Passports.  Safe  Con- 
ducts, infra,  §§  640-641. 

700 


WAR   REGULATIONS  [§405 

country.^  The  departure  of  aliens  may  be  conditioned  upon  their 
obtaining  passports  from  their  own  governments  or  the  represen- 
tatives thereof,  and  upon  the  countersigning  of  such  documents 
by  the  foreign  office  of  the  belligerent.^  Aliens  who,  for  any 
reason,  have  become  subject  to  military  service  may  be  com- 
pelled to  obtain  local  permits  in  order  to  quit  the  country.^ 

Rigid  regulations  may  be  prescribed  as  to  the  movements  of 
naturalized  citizens  of  a  neutral  State,  with  whose  State  of  origin 
the  country  of  sojourn  is  at  war,  especially  when,  according  to  the 
law  of  the  enemy  State,  such  persons  are  not  deemed  to  have 
expatriated  themselves,  or  are  not  regarded  as  exempt  from  mili- 
tary service.  Restraint  of  such  individuals,  if  naturalized  Ameri- 
can citizens,  would  not  necessarily  indicate  disregard  of  the 
change  of  their  allegiance  or  of  the  validity  of  their  passports, 
but  would  rather  betoken  an  appreciation  by  the  belligerent 
State  of  sojourn  of  the  consequences  to  be  anticipated,  should 
such  persons  be  subjected  to  the  control  of  their  former  sovereign.* 
Their  departure,  therefore,  from  belligerent  soil  might  be  fairly 
conditioned  upon  their  return  to  the  United  States. 

^  Mr.  Seward,  Secv.  of  State,  to  Diplomatic  &  Consular  Officers,  circular, 
Mav  25,  1864,  MS.  Circulars,  I,  270,  Moore,  Dig.,  Ill,  1019;  Circular  of 
Dec.  17,  1864,  No.  55,  MS.  Circulars,  I,  281,  Moore,  Dig.,  Ill,  1019. 

2  Statement  in  Moore,  Dig.,  Ill,  1016,  with  reference  to  the  practice  of  the 
United  States  during  the  Civil  War  prior  to  the  enactment  of  the  Act  of 
March  3.  1863 ;  also  Mr.  Fish,  Secy,  of  State,  to  Mr.  WiUiamson,  No.  97, 
July  24,  1874,  MS.  Inst.  Costa  Rica,  XVII,  190,  Moore,  Dig.,  Ill,  1022. 

3  Mr.  F.  W.  Seward,  Acting  Secy,  of  State,  to  Mr.  Irving,  Aug.  18,  1863, 
acting  under  the  authority  of  the  Act  of  March  3,  1863,  61  MS.  Dom.  Let.  412, 
Moore,  Dig.,  Ill,  1018. 

*  On  April  17,  1915,  the  Department  of  State  issued  the  following  notice  to 
American  citizens  who  contemplated  visiting  belligerent  countries : 

"AU  American  citizens  who  go  abroad  should  carry  American  passports, 
and  should  inquire  of  diplomatic  or  consular  officers  of  the  countries  which  they 
expect  to  visit  concerning  the  necessity  of  having  the  passports  visaed  therefor. 

"American  citizens  are  advised  to  avoid  visiting  unnecessarily  countries 
which  are  at  war,  and  particularly  to  avoid,  if  possible,  passing  through  or 
from  a  belligerent  country  to  a  country  which  is  at  war  therewith. 

"It  is  especially  important  that  naturalized  American  citizens  refrain  from 
visiting  their  countries  of  origin  and  countries  which  are  at  war  therewith. 

"As  belligerent  countries  are  accustomed,  for  self-protection,  to  scrutinize 
carefully  aliens  who  enter  their  territories,  American  citizens  who  find  it 
necessary  to  visit  such  countries  should,  as  a  matter  of  precaution  and  in  order 
to  avoid  detention,  provide  themselves  with  letters  or  other  documents,  in 
addition  to  their  passports,  showing  definitely  the  object  of  their  visits.  In 
particular  it  is  advisable  for  persons  who  go  to  belligerent  countries  as  repre- 
sentatives of  commercial  concerns  to  carry  letters  of  identification  or  intro- 
duction from  such  concerns. 

"American  citizens  sojourning  in  countries  which  are  at  war  are  warned  to 
refrain  from  any  conduct  or  utterance  which  might  be  considered  offensive 
or  contrary  to  the  principles  of  strict  neutrality."  American  White  Book, 
European  War,  II,  162. 

See,  also,  Grounds  of  Refusal,  supra,  §  401. 

701 


§406]  AMERICAN  PASSPORTS 


§  406.   Regulations  of  the  United  States  as  a  Belligerent. 

A  joint  order  of  July  26,  1917,  issued  by  the  Secretary  of  State 
and  the  Secretary  of  Labor,  required  aliens  coming  to  the  United 
States  to  bear  passports  visaed  by  consular  officers  of  the  United 
States.  Before  being  granted  visas,  the  holders  of  passports  were 
obliged  to  fill  out  a  questionnaire  on  a  prescribed  form,  disclosing 
such  information  as  to  their  antecedents,  nationality,  residence, 
occupation  and  purpose  of  coming  to  the  United  States  as  the 
Government  deemed  necessary.  A  circular  instruction  to  diplo- 
matic and  consular  officers  was  issued  on  the  same  date.  Those 
officers  had  been  instructed  by  telegraph  shortly  after  the  United 
States  became  a  belligerent,  to  require  aliens  seeking  to  enter 
the  United  States  to  have  their  passports  visaed,  and  to  scrutinize 
applicants  carefully  before  granting  visas ;  but  the  joint  order  of 
July  26,  1917,  made  the  visa  regulations  much  more  thorough  and 
effective.^ 

By  virtue  of  authority  vested  in  him  by  an  Act  of  May  22, 
1918,  to  prevent  in  time  of  war  departure  from  or  entry  into  the 
United  States  contrary  to  the  public  safety,^  the  President,  by 
proclamation  of  August  8,  1918,  and  by  an  executive  order  of  the 

'  The  paragraph  in  the  text  is  taken  from  a  memorandum  by  Mr.  R.  W. 
Flournoy,  Jr.,  addressed  to  the  author,  Sept.  21,  1920,  where  it  is  added:  "In 
the  meantime  the  Department  of  State  had  already  made  informal  arrange- 
ments with  the  Departments  of  the  Treasury  and  of  Commerce  under  which 
all  persons  boarding  vessels  for  foreign  countries  were  required  to  submit 
passports.  Steamship  companies  were  notified  that  clearances  would  be  with- 
held from  their  vessels  unless  there  was  strict  compliance  with  the  passport 
regulations. 

"The  above  mentioned  action  was  taken  without  waiting  for  special 
authorization  by  Congress.  It  was  a  case  where  practical  necessity  and  com- 
mon sense  seemed  to  dictate  prompt  and  vigorous  action  without  awaiting 
special  legislative  authorization." 

It  may  be  observed  that  by  the  executive  order  of  Aug.  8, 1918,  in  pursuance  of 
the  Act  of  May  22, 1918,  the  joint  order  of  July  26,  1917,  was  confirmed  and  con- 
tinued in  effect.    It  is  printed  with  the  executive  order  as  Appendix  A  thereof. 

2  Chap.  81,  40  Stat.  559.  The  President  adverted  in  his  proclamation  to 
the  provisions  of  other  laws  relating  to  departure  from  and  entry  into  the 
United  States,  as  contained  in  §  3,  subsection  (b),  of  the  Trading  with  the 
Enemy  Act  of  Oct.  6,  1917,  and  in  §  4067,  Rev.  Stat.,  as  amended  by  the  Act 
of  April  16,  1918,  and  §§  4068,  4069,  4070,  Rev.  Stat.,  and  to  regulations  pre- 
scribed in  his  own  proclamations  of  April  6,  1917,  Nov.  16,  1917,  Dec.  11, 
1917,  and  April  19,  1918. 

The  Act  of  May  22,  1918,  declared  that  when  the  United  States  was  at 
war,  if  the  President  should  find  that  the  public  safety  required  that  restric- 
tions and  prohibitions  in  addition  to  those  provided  otherwise  than  by  the 
Act  be  imposed  upon  the  departure  of  persons  from,  and  their  entry  into,  the 
United  States,  and  should  make  public  proclamation  thereof,  it  should,  until 
otherwise  ordered  by  the  President  or  Congress,  be  unlawful  (among  other 
things)  "for  any  alien  to  depart  from  or  enter  or  attempt  to  depart  from  or 

702 


AMERICAN   WAR   REGULATIONS  [§  406 

same  date,  established  a  series  of  rules  governing  the  issuance  of 
passports  and  the  granting  of  permits  to  depart  from  and  enter 
the  United  States.^  According  to  the  proclamation,  no  citizen 
of  the  United  States  was  to  receive  a  passport  entitling  him  to 
leave  or  enter  the  United  States,  unless  it  should  aflSrmatively 
appear  that  there  were  adequate  reasons  for  such  departure  or 
entry,  and  that  such  movements  were  not  prejudicial  to  the  in- 
terests of  the  United  States.  No  alien  was  to  receive  permission 
to  depart  from  or  enter  the  United  States  unless  it  should  affirma- 
tively appear  that  there  was  a  reasonable  necessity  for  such  de- 
parture or  entry,  and  that  such  movements  were  not  prejudicial 
to  the  interests  of  the  United  States. 

According  to  the  rules  and  regulations  of  August  8,  1918,  no 
passports  or  permits  to  depart  from  or  enter  the  United  States  were 
required  of  persons  "other  than  hostile  aliens"  traveling  between 
ports  of  the  continental  United  States  on  vessels  making  no  inter- 
mediate calls  at  foreign  or  non-continental  ports,^  or  between  points 
in  the  continental  United  States  and  points  in  Canada  or  Bermuda, 
or  passing  through  Canada  on  a  trip  between  two  points  in  the 
continental  United  States  (except  in  the  case  of  persons  liable  to 
military  service).^  Nor  were  passports  or  permits  to  depart 
from  or  enter  the  United  States  required  of  persons  attached  to 
the  military  or  naval  forces  of  the  United  States,  "  or  of  any  nation 
associated  with  the  United  States  in  the  prosecution  of  the  war", 
under  conditions  specified.^ 

No  permits  to  depart  from  or  enter  the  United  States  were 
required  of  "officials  or  representatives  of  foreign  countries  duly 
accredited  to  the  United  States  or  a  friendly  country",  provided 
that  they  bore  valid  passports  and  provided  the  Department  of 
State  was  notified  in  advance  of  the  movements  of  such  individ- 
uals and  consented  thereto.^ 

enter  the  United  States  except  under  such  reasonable  rules,  regulations,  and 
orders,  and  subject  to  such  limitations  and  exceptions  as  the  President  shall 
prescribe." 

^  The  proclamation  and  the  executive  order  embracing  the  rules  and  regula- 
tions governing  the  issuance  of  passports  and  the  granting  of  permits  to  enter 
and  leave  the  United  States  were  pubUshed  as  a  single  document  in  1918. 

2  Section  9  (a).  '  Section  9  (6). 

*  Section  9  (c).  Special  provision  was  made  for  the  issuance  to  aliens  of 
so-called  ''border  permits"  for  the  crossing  and  recrossing  of  the  Mexican 
border.     Section  10  (a). 

Arrangement  was  made  for  the  granting  of  permission  to  aliens  passing 
through  the  United  States  en  route  between  two  foreign  points,  and  not  re- 
maining in  the  United  States  more  than  thirtj'  days.     Section  10  (/). 

*  Section  10  {g).  It  was  required,  however,  that  such  officials,  when  de- 
siring to  enter  the  United  States,  should  have  their  passports  visaed  by  a 

703 


§  406]  AMERICAN   PASSPORTS 

Citizens  of  the  United  States  traveling  between  American 
ports  not  within  the  continental  United  States,  or  between  such 
ports  and  ports  within  the  continental  United  States,  on  vessels 
making  no  intermediate  calls  at  foreign  ports  other  than  those 
of  Canada  or  Bermuda,  were  not  required  to  bear  passports  pro- 
vided they  should  have  received  from  the  immigrant  inspector 
at  the  port  of  departure  "United  States  citizens'  identity  cards."  ^ 
Such  cards  were  also  permitted  to  suffice  for  such  citizens  traveling 
across  the  Mexican  border,  unless  otherwise  ordered  by  the  Secre- 
tary of  State.^  Citizens  of  the  United  States  who  were  sea- 
men on  vessels  entering  or  leaving  ports  of  the  United  States  were 
not  required  to  bear  passports  provided  they  bore  seamen's  certifi- 
cates of  American  citizenship,  issued  by  collectors  of  the  ports 
of  the  United  States  in  accordance  with  the  statutory  law.^ 

It  was  declared  that  no  person  registered  or  enrolled  or  subject 
to  registry  or  enrollment  for  military  service  in  the  United  States 
should  depart  from  the  United  States  without  the  previous  con- 
sent of  the  Secretary  of  War  or  of  such  persons  as  he  might  appoint 
to  give  it.  The  Secretary  of  State  was  enjoined  to  issue  no  pass- 
port or  permit  entitling  such  person  to  depart  without  securing 
satisfactory  evidence  of  such  consent."^ 

Elaborate  arrangements  were  made  for  the  issuance  of  permits 
to  aliens  to  depart  from  and  enter  the  United  States.^  A  general 
system  of  control  at  points  of  entry  and  departure  was  estab- 
lished.^    It  is  not  believed  that  the  regulations  of  the  United 

diplomatic  or  consular  officer  of  the  United  States  in  the  country  from  which 
they  came  and  in  the  country  from  which  they  embarked  for  or  entered  the 
United  States.  Such  officials  desiring  to  depart  from  the  United  States  were 
required  to  have  their  passports  visaed  by  the  Department  of  State. 

1  Section  11  (a)  ^  Section  U  (6).  ^  Section  11  (c). 

*  Section  12. 

It  was  declared  in  Section  14  that  passports  were  not  valid  for  return  to  the 
United  States  unless  verified  in  the  country  from  which  the  holder  started  on 
his  journey  thereto,  and  further  verified  in  the  foreign  covmtry  from  which  he 
embarked  for  or  entered  the  United  States. 

5  Sections  15-39. 

e  Sections  36-38. 

On  Aug.  25,  1919,  the  President,  upon  the  suggestion  of  the  Secretary  of 
State,  recommended  to  the  Congress  that  the  passport-control  system  under 
the  Act  of  May  22,  1918,  be  extended  for  one  year  after  peace  should  be  con- 
cluded between  the  United  States  and  the  Central  Powers  of  Europe.  Senate 
Doc  No.  79,  66  Cong.,  1  Sess  By  an  Act  received  by  the  President  Oct.  29, 
1919,  and  which  became  a  law  without  his  approval,  in  November  following, 
it  was  provided  that  if  the  President  should  find  that  the  public  safety  re- 
quired that  restrictions  and  prohibitions  in  addition  to  those  provided  other- 
wise than  by  the  Act,  be  imposed  upon  the  entry  of  aliens  in  the  United  States, 
and  should  make  public  proclamation  thereof,  it  should  (among  other  things), 
until  otherwise  ordered  by  the  President  or  Congress,  be  unlawful  "for  any 
alien  to  enter  or  attempt  to  enter  the  United  States  except  xinder  such  reason- 

704 


AMERICAN    WAR    REGULATIONS  [§  406 

States  in  relation  to  alien  persons  betokened  an  abuse  of  power. 
The  extraordinary  conditions  confronting  the  nation  appeared 
to  justify  amply  the  measures  adopted.^ 

able  rules,  regulations,  and  orders,  and  subject  to  such  passport,  vis6,  or  other 
limitations  and  exceptions  as  the  President  shall  prescribe."  This  Act  was 
to  take  effect  upon  the  date  when  the  Act  of  May  22,  1918,  should  cease  to  be 
operative,  and  was  to  continue  in  force  and  effect  until  and  including  March  4, 
1921.     PubKc,  No.  79,  66  Cong.  [H.  R.  9782]. 

1  Mr.  Lansing,  Secy,  of  State,  to  the  President,  Aug.  20,  1919,  Senate  Doc. 
No.  79,  66  Cong.,  1  Sess.,  3. 

By  an  executive  order  of  June  27,  1920,  amending  that  of  Aug.  8,  1918, 
persons  defined  by  statute  or  proclamation  as  hostile  or  enemy  aliens,  and  who 
might  be  desirous  of  departing  from  the  United  States  were  not,  unless  the 
Secretary  of  State  might  so  order,  to  be  required  to  obtain  a  permit  of  the 
Government  prior  to  such  departure.  It  was  declared  that  such  persons 
would  be  permitted  to  depart  upon  presentation  of  passports  issued,  renewed 
or  visaed  by  representatives  of  their  respective  Governments  within  one  year 
prior  to  the  proposed  date  of  departure,  accompanied  by  certificates  of  com- 
pliance with  the  income  tax  law. 


705 


PART   111 

DIPLOMATIC   INTERCOURSE   OF   STATES 

TITLE  A 
§  407.   In  General. 

The  practice  of  enlightened  States  has  revealed  the  fact  that 
both  the  processes  and  instrumentalities  of  diplomatic  inter- 
course are  matters  requiring,  for  sake  of  mutual  convenience, 
adherence  to  certain  principles  designed  to  promote  justice.  It 
is  significant,  moreover,  that  among  the  earliest  rtiles  in  which 
States  were  ready  to  acquiesce,  in  token  of  recognition  of  the  need 
of  a  law  of  nations,  were  those  pertaining  to  the  treatment  to  be 
accorded  diplomatic  officers. 

When  the  United  States  came  into  being  many  of  these  rules 
were  well  established.  During  the  interval  that  has  since  elapsed 
some  have  been  modified.  It  seems  important  to  observe  those 
on  which  the  United  States  has  placed  reliance  and  laid  special 
emphasis. 

It  must  be  constantly  borne  in  mind  that  the  canons  of  inter- 
national law  restraining  the  action  of  States  are  distinct  from  and 
may  in  fact  oppose  theories  of  diplomacy  to  which  particular 
powers  may  be  committed.  The  conflict  between  law  and  policy 
is  vividly  illustrated  in  the  nature  of  the  tasks  too  frequently  im- 
posed upon  public  ministers.  Because  the  method  of  fulfillment 
of  essentially  legal  obligations  pertaining  to  diplomatic  intercourse 
rests  largely  with  the  discretion  of  the  individual  State,  the  nature 
and  scope  of  its  duties  may  have  been  at  times  obscured.  The 
success,  therefore,  of  any  attempt  to  ascertain  what,  in  the  light 
of  American  opinion,  they  entail,  and  wherein  they  should  be  modi- 
fied, must  depend  upon  the  care  taken  to  distinguish  that  which 
by  common  consent  is  assigned  to  local  regulation  according  to 
domestic  policy,  from  that  which  is  demanded  as  of  right  by  the 
international  society  from  each  of  its  members. 

707 


TITLE   B 
AGENTS  OF  A  STATE 

1 

§  408.   The  President  of  the  United  States. 

The  foreign  relations  of  a  State  are  necessarily  conducted  by  an 
agent  or  agents  who  act  either  directly  or  through  subordinates.^ 
Each  member  of  the  family  of  nations  enjoys  a  large  freedom  in 

^  Respecting  American  diplomatic  officers,  see  Instructions  to  the  Diplo- 
matic Officers  of  the  United  States,  1897,  and  continuations  thereof;  Docu- 
ments in  Moore,  Dig.,  IV,  425-806. 

See,  also,  generally,  Bonfils-Fauchille,  7  ed.,  §§  652-732,  with  bibliography; 
Edward  S.  Corwin,  The  President's  Control  of  Foreign  Relations,  Prince- 
ton, 1917;  bibliography  in  Clunet,  Tables  Generales,  I,  449-451,  875-876; 
A.  de  Clercq  and  C.  de  Vallat,  Forrnulaire  des  chancelleries  diplomatiques 
et  consulaires,  7  ed.,  Paris,  1909;  -John  W.  Foster,  A  Century  of  American 
Diplomacy,  Boston,  1901 ;  American  Diplomacj'  in  the  Orient,  1903 ;  The 
Practice  of  Diplomacy,  Boston,  1906;  Diplomatic  Memoirs,  Boston,  1909; 
Hall,  Higgins'  7  ed.,  306-333;  Hershey,  Int.  L.,  275-297,  with  bibliography; 
David  Jayne  Hill,  History  of  Diplomacy  in  the  International  Deyelopment 
of  Europe,  New  York,  1905-1914;  Gaillard  Hunt,  A  History  of  the  Depart- 
ment of  State,  New  Haven,  1914;  H.  C.  R.  Lisboa,  Les  Fonctions  Diploma- 
tiques en  Temps  de  Paix,  Santiago  de  Chile,  1908 ;  Baron  Charles  de  Martens. 
Causes  Celebres,  Leipzig,  1827;  Denys  P.  Myers,  Notes  on  the  Control  of 
Foreign  Relations,  The  Hague,  1917;  J.  B.  Moore,  Principles  of  American 
Diplomacy,  New  York,  1918;  Charles  Ozanam,  L'Immunite  Civile  de  Juri- 
diction  des  Agents  Diplomatiques,  Paris,  1912;  C.  Oscar  PauUin,  Diplomatic 
Negotiations  of  American  Naval  Officers:  1778-1883,  Baltimore,  1912; 
PhiUimore,  II,  §§94-242;  Walter  Alison  Phillips,  "Diplomacy",  in  Encyc. 
Brit.  Eleventh  ed.,  VIII,  294;  Coleman  Phillipson,  International  Law  and 
Custom  of  Ancient  Greece  and  Rome,  London,  1911;  P.  Pradier-Fodere, 
Cours  de  Droit  Diplomatique,  Paris,  1899;  E.  T.  Rayneli,  Derecho  Diplo- 
mitico  Moderno,  Buenos  Aires,  1914;  Jean  Roederer,  De  I' Application  des 
Immunitrs  de  I' Ambassadeur  au  Personnel  de  I'Ambassade,  Paris,  1904; 
Sir  Ernest  Satow,  Guide  to  Diplomatic  Practice,  London,  1917;  Eugene 
Schuvler,  American  Diplomacy,  New  York,  1895,  105-190;  Charlemagne 
Tower,  Essavs  Political  and  Historical,  Philadelphia,  1914;  Frederick  Van 
Dyne,  Our  Foreign  Service:  The  "A  B  C"  of  American  Diplomacy,  with 
bibliography,  Rochester,  1909;  T.  A.  Walker,  History  of  the  Law  of  Na- 
tions, London,  1899;  R.  P.  Ward,  An  Inquiry  into  the  Foundation  and 
History  of  the  Law  of  Nations  in  Europe,  from  the  time  of  the  Greeks  and 
Romans  to  the  age  of  Grotius,  Dublin,  1795;  Dana's  \\Tieaton,  §§206- 
251,  also  Dana's  Note,  No.  129;  G.  G.  Wilson,  Int.  L.,  159-180;  Woolsey, 
6  ed.,  §§  86-98. 

708 


THE    PRESIDENT    OF    THE    UNITED    STATES      [§  408 

determining  through  what  instrumentalities  it  will  hold  intercourse 
with  the  outside  world. ^ 

The  Constitution  of  the  United  States  confides  the  direction 
of  its  foreign  affairs  to  the  President,  whose  freedom  of  action  is, 
however,  in  certain  matters,  made  dependent  upon  the  approval 
of  the  Senate.^  The  President  is,  therefore,  the  representative 
of  the  nation  in  its  official  correspondence  with  foreign  powers. 
It  has  been  deemed  improper  for  a  foreign  diplomatic  officer  to 
attempt  to  make  official  communication  to  the  Government 
through  any  channel  other  than  the  executive.^ 

1  It  IS  not  wathout  interest  that  following  the  so-called  "Boxer"  trouble 
in  China  in  1900,  the  Imperial  Government  of  that  State  was  obliged  by  the 
Powers  to  reform  its  Office  of  Foreign  Affairs  (Tsungli  Yamen)  and  to  trans- 
form it  into  a  Ministry  of  Foreign  Affairs  {Wai-wu  Pu)  which  should  take 
precedence  over  the  six  other  Ministries  of  State.  Art.  XII  of  protocol  of  Sept. 
7,  1901,  Malloy's  Treaties,  II,  2011;  also  Imperial  Edict  of  July  24,  1901, 
For.  Rel.  1901,  Appendix  (Affairs  in  China),  337. 

2  According  to  paragraph  2,  Section  2,  Art.  II,  the  President  "shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two  thirds  of  the  Senators  present  concur;  and  he  shall  nominate, 
and  by  and  with  the  advice  and  consent  of  the  Senate  shall  appoint  am- 
bassadors, other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States,  whose  appointments  are  not  herein 
otherwise  provided  for,  and  which  shall  be  established  by  law."  According 
to  paragraph  11,  Section  8,  Art.  I,  the  power  "to  declare  war"  is  entrusted 
to  the  Congress. 

'  Declared  Mr.  Jefferson,  Secy,  of  State,  to  Mr.  Genet,  the  French  Min- 
ister, Nov.  22,  1793,  "In  ray  letter  of  October  2,  I  took  the  liberty  of  notic- 
ing to  you,  that  the  commission  of  consul  to  M.  Dannery  ought  to  have  been 
addressed  to  the  President  of  the  United  States.  He  being  the  only  channel 
of  communication  between  this  country  and  foreign  nations,  it  is  from  him 
alone  that  foreign  nations  or  their  agents  are  to  learn  what  is  or  has  been 
the  will  of  the  nation ;  and  whatever  he  communicates  as  such,  they  have  a 
right,  and  are  bound  to  consider  as  the  expression  of  the  nation,  and  no  for- 
eign agent  can  be  allowed  to  question  it,  to  interpose  between  him  and  any 
other  branch  of  Government,  under  the  pretext  of  cither's  transgressing  their 
functions,  nor  to  make  himself  the  umpire  and  final  judge  between  them." 
Am.  State  Pap.,  For.  Rel.  I,  184.  See,  also,  Moore,  Dig.,  IV,  680-682,  and 
documents  there  cited. 

In  December,  1920,  the  Guatemalan  Minister  at  Washington,  and  also  the 
Secretary  of  the  British  Embassy  sought  to  communicate  information  (the 
former,  in  a  personal  conference,  and  the  latter,  by  wTiting)  to  members  of 
the  Senate  respecting  matters  of  international  import  and  bearing  upon  tho 
foreign  relations  of  the  United  States.  It  is  understood  that  in  both  in- 
stances, the  Department  of  State  made  known  the  incorrectness  of  this  pro- 
cedure to  the  foreign  governmental  agencies  which  doubtless  inadvertently 
had  recourse  to  it. 

The  communications  of  the  President  to  the  Congress  in  relation  to  foreign 
affairs  are  not  regarded  as  justifying  any  demand  for  explanation  from  abroad, 
or  as  an  appropriate  subject  for  diplomatic  discussion.  See  documents  in 
Moore,  Dig.,  IV,  683-686,  especially  Mr.  Forsyth,  Secy,  of  State,  to  Mr. 
Livingston,  Minister  to  France,  March  5,  1835,  MS.  Inst.  France,  XIV,  191, 
193. 

"The  President  is  the  sole  organ  of  the  nation  in  its  external  relations,  and 
its  sole  representative  with  foreign  nations."  John  Marshall,  in  House  of 
Representatives,  March  7,  1800,  6  Cong.,  Annals,  613,  quoted  in  Crandall, 
Treaties,  2  ed.,  §  47. 

709 


§409]  A.GENTS   OF  A   STATE 


§    409.        Communications     through     Non-Governmental 
Channels. 

The  government  of  a  State  may  in  fact  communicate  information 
to  that  of  another  through  the  public  press  rather  than  the  dip- 
lomatic channel.  The  propriety  of  such  action  may  be  regarded 
as  dependent  upon  the  circumstances  of  the  particular  case.  If  the 
design  is  to  advise  the  people  of  the  State  thus  sought  to  be  informed 
of  conditions  calculated  to  arouse  popular  opposition  to  its  own 
government  in  a  matter  of  international  concern,  that  govern- 
ment must  be  expected  to  take  offense.^ 

Until  very  recent  times  it  was  not  assumed  in  intercourse  be- 
tween friendly  States  that  the  governments  constitutionally  en- 
trusted with  the  management  of  foreign  affairs  were  to  be  re- 
garded as  other  than  identical  with  the  States  which  they  purported 
to  represent.  Therefore,  it  was  not  supposed  that  a  government 
could  win  the  acquiescence  or  approval  of  a  foreign  State  whose 
government  was  in  any  sense  sought  to  be  overridden.  The 
theory  of  an  essential  agreement  or  of  singleness  of  purpose  be- 
tween States  in  opposition  to  the  government  of  either  did  not 
obtain,  and  thus  found  little  room  for  application  in  practice. 
Impressive  invocation  of  such  a  theory  appears,  however,  lately 
to  have  been  observed  by  high  representatives  (if  not  the  Govern- 
ments) of  the  United  States  and  Great  Britain.^ 

On  April  23,  1919,  when  the  subject  was  under  discussion  be- 
tween representatives  of  the  United  States  and  Italy,  at  the  Peace 
Conference,  President  Wilson  permitted  the  publication  in  the 
press  of  a  statement  indicating  what  in  his  judgment  was  the  sole 
basis  of  the  just  solution  of  the  controversy  concerning  Fiume, 
and  which  opposed  the  position  taken  by  the  Italian  plenipoten- 
tiaries.^ In  his  guarded  reply,  Premier  Orlando  adverted  to  the 
procedure  as  constituting  an  innovation  in  international  relations. 
Without  charging  that  such  was  the  case,  he  declared  that  if  such 
appeals  were  to  be  "considered  as  addressed  to  the  nations  out- 
side of  the  governments  which  represent  them  (I  might  even  say 

^  The  necessary  implication  in  such  case  is  that  the  employment  of  such 
a  channel  of  communication  was  due  to  a  belief  that  possibly  the  information 
would  not  have  been  revealed  to  the  people  had  it  been  communicated  through 
the  customary  diplomatic  agencies,  and  that  fear  of  such  a  contingency  in- 
duced recourse  to  a  more  direct  procedure. 

2  See,  in  connection  with  this  subject,  as  supplementary  thereto,  OflBcial 
Negotiations,  The  Diplomatic  Channel,  infra,  §  454. 

'  For  the  text  of  President  Wilson's  statement,  see  Current  History,  June, 
1919,  X,  Part  I,  p.  405. 

710 


]^ON-GOVERNMENTAL    CHANNELS  [§  409 

against  the  governments),"  he  would  feel  deep  regret  in  recalling 
that  such  process,  previously  applied  to  enemy  governments,  was 
then  applied  for  the  first  time  to  a  government  which  had  been 
and  intended  to  remain  a  loyal  ally  of  the  great  American  Republic, 
namely,  the  Italian  Government.^ 

On  January  31,  1920,  Lord  Grey,  British  Ambassador  to  the 
United  States,  while  in  England,  permitted  the  publication  in 
the  London  Times  of  an  unofficial  communication  from  himself, 
in  which  he  expressed  sympathy  for  those  who  in  the  L'nited  States 
sought  to  attach  reservations  to  the  pending  treaty  of  peace  with 
Germany,  and  announced  that  Great  Britain  might  be  disposed 
to  acquiesce  should  the  L^nited  States  ratify  the  treaty  with 
reservations.^  This  information  was  deemed  to  possess  unusual 
significance  in  view  of  the  existing  conflict  of  opinion  as  to  the 
terms,  if  any,  on  which  the  Senate  should  advise  and  consent  to 
ratification,  and  at  a  time  when  it  was  not  generally  known  in 
the  United  States  how  an  Associated  Power  such  as  Great  Britain 
would  regard  reservations  stich  as  had  been  proposed. 

The  foregoing  instances  illustrate  more  than  the  innovation  which 
they  record.  They  reveal  the  fact  that  at  the  present  time  infor- 
mation of  such  vital  concern  to  a  foreign  State  as  to  be  likely  to 
influence  its  conduct  will  necessarily  be  brought  home  to  it  by  the 
straightest  path  and  through  the  simplest  means ;  and  that  when 
any  conventional  channel  seems  for  any  reason  to  obstruct  rather 
than  facilitate  the  communication  of  intelligence  of  such  a  kind, 
other  means  of  enlightenment  will  be  employed.    In  a  word,  govern- 

1  Current  History,  June,  1919,  X,  Part  I,  p.  407.  Premier  Orlando  added  : 
"To  place  the  Italian  people  in  opposition  to  the  Government  would  be  to 
admit  that  this  great  free  nation  would  submit  to  the  yoke  of  a  will  other 
than  its  own,  and  I  should  be  forced  to  protest  strongly  against  suppositions 
justly  offensive  to  my  country." 

^  This  communication  was  published  in  the  Philadelphia  Public  Ledger,  and 
in  the  New  York  Times  Feb.  1,  1920.  No  opinion  is  ventured  as  to  the  propri- 
ety of  the  discussion  by  a  diplomatic  officer  accredited  to  the  United  States 
of  a  matter  of  political  importance  to  it,  and  calling  for  possible  action  on 
the  part  of  one  branch  of  the  Congress.  It  may  be  observed,  however,  in  this 
connection,  that  the  distinguished  Ambassador  gave  expression  to  his  views 
while  in  his  own  country,  and  that  his  action  in  so  doing  doubtless  had  the 
warm  approval  of  his  Government.  Had  the  Government  of  the  United 
States  expressed  disapproval  of  Lord  Grey's  course  as  at  variance  with  the 
traditional  obligations  of  a  minister  to  abstain  from  interference  in  the  do- 
mestic politics  of  the  State  to  which  he  is  accredited,  the  British  Government 
might  have  evinced  readiness  to  ratify  the  statement  and  to  assume  them- 
selves responsibility  for  recourse  to  the  procedure  followed.  The  case  raised 
a  larger  question  than  one  concerning  the  propriety  of  conduct  of  a  partic- 
ular diplomatic  officer,  involving  rather  the  issue  whether  a  government  such 
as  that  of  Great  Britain  might  not  reasonably,  under  the  circumstances, 
make  known  to  the  people  of  the  United  States  and  incidentally  to  the 
Senate,  information  deemed  to  be  of  vital  concern  to  both. 

711 


§409]  AGENTS   OF   A   STATE 

mental  agencies  established  for  the  management  of  foreign  affairs  no 
longer  appear  to  perform  adequately  their  proper  functions  if  they 
endeavor  or  incline  to  withhold  from  the  people  in  times  of  public 
stress  information  which  if  known  would  control  the  foreign  poli- 
cies of  the  State.  For  that  reason  it  is  to  be  anticipated  that 
such  agencies,  both  in  the  United  States  and  elsewhere,  will  here- 
after, as  a  means  of  retaining  power  and  of  directing  securely  the 
control  of  foreign  affairs,  become  increasingly  disposed  to  enlighten 
public  opinion,  on  matters  pertaining  to  the  outside  world. 

All  negotiations  between  States  must  be  carried  on  through 
the  medium  of  governmental  agencies  constitutionally  or  legally 
established  for  the  purpose.  Effective  diplomatic  intercourse  de- 
mands, therefore,  mutual  respect  for  them.  In  token  thereof 
it  must  be  assumed,  under  normal  circumstances,  that  a  govern- 
ment of  a  foreign  State  with  which  diplomatic  relations  are  main- 
tained will  fail  in  no  obligation  which  it  owes  to  the  people  of  its 
own  country.  Consequently,  action  based  on  a  different  assump- 
tion must  be  regarded  with  hostility  by  the  government  which 
is  denied  this  customary  imputation  of  efficiency  or  loyalty  to  its 
domestic  institutions  and  constituents.^  The  fact  of  such  hostility 
must  weigh  heavily  against  the  winning  of  popular  approval  in 
the  State  to  whose  people  a  direct  appeal  is  taken.  It  thus  re- 
quires an  extraordinary  combination  of  circumstances  to  cause 
the  communication  of  intelligence  to  a  foreign  State  by  a  process 
which  designedly  evades  official  channels  to  meet  with  a  friendly 
response  and  so  to  achieve  the  end  desired.  For  that  reason  re- 
course to  such  procedure  is  not  likely  to  be  a  frequent  occurrence. 

^  The  Interparliamentary  Union  "has  for  its  aim  the  uniting  in  common 
action  the  Members  of  all  parliaments  constituted  in  National  Groups  in 
order  to  bring  about  the  acceptance  in  their  respective  countries,  either 
by  legislation  or  by  international  treaties,  of  the  principle  that  differences 
between  nations  should  be  settled  by  arbitration  or  in  other  ways  either  ami- 
cable or  judicial."  Constitution,  Revision  of  1912,  Art.  I.  The  Union  is  de- 
clared to  expect  of  its  members  that  they,  "as  far  as  possible,  see  that  the 
resolutions  passed  at  the  Interparliamentary  Conferences  be  brought  to  the 
attention  of  their  respective  parliaments."  Id.,  Art.  V.  The  organization 
although  made  up  chiefly  of  responsible  statesmen  belonging  to  the  legisla- 
tive departments  of  numerous  States  embracing  the  United  States,  does  not 
undertake  to  communicate  information  from  one  government  to  the  legis- 
lature of  another  It  is  not  understood  that  the  views  which  are  commimicated 
as  among  various  legislatures  are  more  than  those  of  the  several  National 
Groups  constituting  the  Union.  According  to  the  statement  of  Dr.  C.  L. 
Lange,  Secretary  General,  published  by  the  American  Group  in  1914,  the 
Union  had  up  to  that  time  always  limited  itself  to  the  discussion  of  ques- 
tions relating  to  international  law,  refraining  from  the  discussion  of  economic 
questions,  and  from  pronouncements  of  a  political  nature,  in  which  the  inter- 
ests of  different  States  might  be  opposed.  See  The  Interparliamentary  Union 
Hand  Book  of  the  American  Group,  1914, 14.  Also  Annual  Report  for  1914 
submitted  by  the  Secretary  General,  Kristiania,  1915. 

712 


THE    SECRETARY    OF   STATE  [§  410 


§  410.    The  Secretary  of  State  as  Organ  of  Correspondence. 

As  early  as  1789,  the  Congress  created  an  executive  depart- 
ment to  be  known  as  the  Department  of  State,  and  a  Secretary  of 
State  who  was  to  be  its  head.^  It  was  provided  that  that  officer 
should  perform  such  duties  as  the  President  might  enjoin  on 
or  entrust  to  him  relative  to  correspondence,  commissions  or  in- 
structions to  or  with  diplomatic  or  consular  officers  of  the  United 
States,  or  to  negotiations  with  foreign  public  ministers,  or  to 
memorials  or  to  other  applications  from  such  officials  or  other 
foreigners,  or  to  such  other  matters  respecting  foreign  affairs  as 
the  President  might  assign  to  the  Department.  It  was  expressly 
declared  that  the  business  of  the  Department  should  be  con- 
ducted by  the  Secretary  in  such  manner  as  the  President  should 
direct.^ 

In  early  days  of  the  Republic  it  was  regarded  as  "not  the  es- 
tablished course"  for  diplomatic  officers  to  have  direct  corre- 
spondence with  the  President ;  ^  and  as  late  as  1888,  Secretary 
Bayard  declared  that  "  all  the  acts  of  the  President,  in  his  official 
capacity,  pass  through  the  constitutional  and  statutory  channel 
of  the  Secretary  of  State."  ^  In  more  recent  years  the  President 
has,  on  numerous  occasions,  addressed  himself  directly  to  the 
heads  of  foreign  States,  from  whom  also  he  has  himself  been  the 
recipient  of  communications.^    Foreign  ambassadors  have,  more- 

1  Rev.  Stat.  §  199,  Moore,  Dig.,  IV,  780. 

Before  the  adoption  of  the  Constitution,  the  foreign  affairs  of  the  United 
States  were  conducted  by  the  Congress,  which  at  first  endeavored  to  perform 
certain  of  its  duties  through  committees.  In  1781,  it  estabhshed  a  Department 
of  Foreign  Affairs  in  charge  of  a  "Secretary  for  Foreign  Affairs  ",  who  in  1785 
was  declared  to  be  the  medium  of  all  communications  to  and  from  the  Con- 
gress in  respect  to  foreign  relations.  Gaillard  Hunt,  History  of  the  Depart- 
ment of  State,  Chap.  I,  and  documents  there  cited. 

2  Rev.  Stat.  §  202,  Moore,  Dig.,  IV,  781. 

The  acts  of  the  Department  of  State  with  respect  to  foreign  affairs  "are 
in  legal  contemplation  the  acts  of  the  President."  Gray,  J.,  in  Jones  v.  United 
State,  137  U.  S.  202,  217. 

'  Mr.  Jefferson,  Secy,  of  State,  to  M.  Genet,  French  Minister,  Aug.  16, 
1793,  5  MS.  Dom.  Let.  231,  Moore,  Dig.,  IV,  686. 

*  Communication  to  Mr.  Pratt,  Minister  to  Persia,  No.  104,  Dip.  Series, 
April  5,  1888,  MS.  Inst.  Persia,  I,  208,  Moore,  Dig.,  IV,  687,  688. 

*  See  statement  in  Moore,  Dig.,  IV,  689;  telegram  of  condolence  from 
President  Roosevelt,  to  the  King  of  Portugal  Feb.  3,  1908,  in  respect  to  the 
assassination  of  the  King  and  Crown  Prince  of  that  State,  For.  Rel.  1908, 
687.  Correspondence  between  President  Roosevelt  and  the  Emperor  of 
Japan  in  1905,  respecting  the  services  of  the  former  in  the  cause  of  peace 
between  Japan  and  Russia,  For.  Rel.  1905,  823-824. 

President  Taft,  to  Prince  Chun,  Regent  of  the  Chinese  Empire,  July  15, 
1909,  respecting  the  participation  by  American  capital  in  a  railway  loan,  For. 

713 


§  410]  AGENTS    OF   A   STATE 

over,  availed  themselves  on  occasion  of  the  privilege  of  conferring 
with  the  President.^ 

In  the  course  of  The  World  War,  both  before  and  after  the  United 
States  became  a  belligerent,  the  President  himself  undertook  to 
make  suggestions  in  relation  to  the  terms  of  peace.  •  In  December, 
1916,  certain  of  them  were  communicated  to  both  belligerent 
and  neutral  powers  through  the  medium  of  the  Department  of 
State.-  In  January,  1918,  others  were  announced  in  an  address 
to  the  Congress,^  and  thereby  attained  wide  publicity  abroad  re- 
gardless of  the  official  channels  through  which  they  were  brought 
to  the  attention  of  foreign  powers.^  Later,  the  President,  "acting 
in  his  own  name  and  by  his  own  proper  authority",  became  the 
head  of  the  American  Commission  for  the  conclusion,  in  conjunc- 
tion with  the  Allied  and  Associated  Powers,  of  a  treaty  of  peace 
with  Germany.^  In  that  capacity  he  became  the  direct  spokes- 
man of  the  United  States  in  the  matter  of  negotiation.  In 
assuming  in  person  the  conduct  of  negotiations  which  are  nor- 
mally confided  to  t!he  Secretary  of  State  or  to  diplomatic  representa- 
tives, the  President  does  not  appear  to  be  restricted  by  the  statu- 
tory law.  Such  action  on  his  part  is,  moreover,  without  inter- 
national significance. 


DIPLOMATIC  MISSIONS 
a 

§  411.   Classification  of  Ministers. 

In  determining  the  relative  rank  and  precedence  of  diplomatic 
representatives,  the  Department  of  State  has  adopted   and  pre- 

Rel.  1909,  178;    same,  to  the  President  of  Cuba,  Aug.  2,  1911,  referring  to 
European  claims  against  that  State,  For.  Rel.  1911,  129. 

President  Wilson,  to  the  Provisional  Government  of  Russia,  Oflficial  Bulle- 
tin, June  9,  1917,  I,  No.  26;  same,  to  the  American  Consul  General  at  Mos- 
cow, for  communication  through  the  Soviet  Congress  to  the  people  of  Russia, 
Official  Bulletin,  March  12,  1918,  II,  No.  255. 

1  Ambassadorial  Privileges,  infra,  §  459. 

2  Communication  of  Mr.  Lansing,  Secy,  of  State,  to  Mr.  W.  H.  Page, 
American  Ambassador  at  London,  Dec.  18,  1916,  American  White  Book, 
Europe;in"^Var,  IV,  321. 

^  President  Wilson,  address  to  the  Congress,  Jan.  8,  1918,  announcing  a 
proposed  basis  for  a  program  of  peace.  Official  Bulletin,  Jan.  8,  1918,  II, 
No.  202 ;   J.  B.  Scott,  President  Wilson's  Foreign  Policy,  354. 

*  It  is  to  be  noted  that  at  the  time  of  this  address,  responsible  statesmen 
of  Europe  were  making  known  their  views  in  relation  to  peace  through  the 
medium  of  public  speeches  which  were  given  widest  circulation  in  America 
and  elsewhere. 

*  Senate  Doc.  No.  49,  66  Cong.,  1  Sess.,  p.  3. 

714 


CLASSIFICATION    OF   MINISTERS  [§  411 

scribed  the  seven  rules  of  the  Congress  of  Vienna,  found  in  the 
protocol  of  the  session  of  March  19,  1815,  and  the  supplementary 
or  eighth  rule  of  the  Congress  of  Aix-la-Chapelle  of  November 
21,  1818.1    They  are  as  follows: 

Article  I.  Diplomatic  agents  are  divided  into  three  classes : 
That  of  ambassadors,  legates,  or  nuncios ;  that  of  envoys, 
ministers,  or  other  persons  accredited  to  sovereigns ;  that  of 
charges  d'affaires  accredited  to  ministers  for  foreign  affairs. 

Art.  II.  Ambassadors,  legates,  or  nuncios  only  have  the 
representative  character. 

Art.  III.  Diplomatic  agents  on  an  extraordinary  mission 
have  not,  on  that  account,  any  superiority  of  rank. 

Art.  IV.  Diplomatic  agents  shall  take  precedence  in  their 
respective  classes  according  to  the  date  of  the  official  notifica- 
tion of  their  arrival.  The  present  regulation  shall  not  cause 
any  innovation  with  regard  to  the  representative  of  the  Pope. 

Art.  V.  A  uniform  mode  shall  be  determined  in  each  State 
for  the  reception  of  diplomatic  agents  of  each  class. 

Art.  VI.  Relations  of  consanguinity  or  of  family  alliance 
between  courts  confer  no  precedence  on  their  diplomatic  agents. 
The  same  rule  also  applies  to  political  alliances. 

Art.  VII.  In  acts  or  treaties  between  several  powers  which 
grant  alternate  precedence,  the  order  which  is  to  be  observed 
in  the  signatures  shall  be  decided  by  lot  between  the  ministers. 

Art.  VIII.  It  is  agreed  that  ministers  resident  accredited 
to  them  shall  form,  with  respect  to  their  precedence,  an  inter- 
mediate class  between  ministers  of  the  second  class  and  charges 
d'affaires. 

The  diplomatic  representatives  of  the  United  States  are  of  the 
first,  the  second,  the  intermediate  and  the  third  of  the  foregoing 
classes  as  follows : 

(a)  Ambassadors  extraordinary  and  plenipotentiary. 

(6)  Envoys  extraordinary  and  ministers  plenipotentiary, 
and  special  commissioners,  when  styled  as  having  the  rank  of 
envoy  extraordinary  and  minister  plenipotentiary. 

(c)  Ministers  resident.  •« 

These  grades  of  representatives  are  accredited  by  the  Presi- 
dent. 

1' Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  18, 
Moore,  Dig.,  IV,  430. 

The  rules  of  the  Congress  of  Vienna  are  contained  in  Nouv.  Rec.,  H,  449; 
the  supplementary  rule  of  the  Congress  of  Aix-la-Chapelle,  id.,  IV,  648. 

715 


§411]  AGENTS    OF   A   STATE 

(d)  Charges  d'affaires,  commissioned  by  the  President  as 
such,  and  accredited  by  the  Secretary  of  State  to  the  minister 
for  foreign  affairs  of  the  government  to  which  they  are  sent.^ 

It  is  declared  by  the  Department  of  State  that  in  the  absence 
of  the  head  of  the  mission  the  secretary  acts  ex  officio  as  charge 
d'affaires  ad  interim,  requiring  no  special  letter  of  credence ;  but 
that  in  the  absence  of  a  secretary  and  second  secretary,  the  Sec- 
retary of  State  may  designate  any  competent  person  to  act  ad 
interim,  in  which  case  he  is  specifically  accredited  by  letter  to  the 
minister  for  foreign  affairs.^ 

Sometimes  the  office  of  consul-general  is  superadded  to  the 
diplomatic  office  filled  by  a  single  individual.^  In  such  case  the 
diplomatic  rank  is  regarded  as  superior  to  and  independent  of  the 
consular  rank.  The  officer  is,  moreover,  instructed  to  fulfill  his 
consular  duties  in  accordance  with  the  consular  regulations  of  the 
United  States,  and  to  keep  them  in  every  sense  distinct  from  those 
pertaining  to  the  diplomatic  service.^ 

1  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  19, 
Moore,  Dig.,  IV,  430-431. 

According  to  the  existing  statutory  law,  a  "Diplomatic  officer"  is  "deemed 
to  include  ambassadors,  envoys  extraordinary,  ministers  plenipotentiary,  min- 
isters resident,  commissioners,  charges  d'affaires,  counselors,  agents,  secre- 
taries of  embassy  and  legation,  and  secretaries  in  the  Diplomatic  Service, 
and  none  others."     Chap.  208,  39  Stat.  252,  U.  S.  Comp.  Stat.  1918,  §  3116. 

As  to  the  use  of  the  office  of  charge  d'affaires  in  the  earlier  part  of  the  nine- 
teenth century,  see  Mr.  Clay,  Secy,  of  State,  to  the  President,  Jan.  31,  1827, 
Am.  State  Pap.,  For  Rel.,  VI,  554;  also  documents  in  Moore,  Dig..  IV,  432- 
433. 

Declared  Mr.  Gushing,  Attorney-General,  in  the  course  of  an  opinion. 
May  25,  1855  :  "The  title  charge  d'affaires,  which  is  in  itself  quite  as  generic 
and  comprehensive  as  any  of  the  others,  and  may  be  and  often  is  borne  by 
persons  exercising  as  ample  and  high  functions  as  any  of  the  others,  has  settled 
into  the  designation  of  a  mere  provisional  officer,  and  in  dignity  of  the  lowest 
rank."     7  Ops.  Attys.-Gen.,  186,  192. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  19, 
Moore,  Dig.,  IV,  431.  See,  also,  Circular  Instruction  to  Diplomatic  Officers 
of  the  United  States,  March  25,  1902. 

'  Thus,  under  the  existing  law,  the  American  diplomatic  representative  to 
Liberia  is  accredited  as  minister  resident  and  consul  general.  Rev.  Stat. 
§  1683,  U.  S.  Comp.  Stat.  1918,  §  3129;  also  Diplomatic  and  Consular  Service 
of  the  United  States  (corrected  to  July  26,  1919). 

•*  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  20, 
Moore,  Dig.,  IV,  431. 

Some  foreign  governments  do  not  recognize  the  union  of  consular  with  dip- 
nlomatic  functions.  See  President  Cleveland,  Annual  Message,  Dec.  8,  1885, 
For.  Rel.  1885,  xvii,  Moore,  Dig.,  IV,  445,  also  documents,  id.,  respecting 
difficulties  with  Italy  and  Venezuela. 

Declared  Mr.  Foster,  Secy,  of  State  :  "So  far  as  the  rule  of  this  government 
is  concerned,  the  diplomatic  function  of  a  consular  officer  is  only  recognized 
when  he  bears  a  special  letter  of  credence  addressed  to  the  Secretary  of  State ; 
and  conversely  a  consular  officer  of  the  United  States,  even  when  left  in  cus- 
tody of  a  legation,  has  no  diplomatic  rank,  function  or  immunities,  unless 

716 


ATTACHES  [§  413 


§  412.    Secretaries  of  Embassy  or  Legation.     Counselors 
of  Embassy  or  Legation. 

The  Secretary  of  a  mission  is  according  to  international  law  a 
"public  minister."  His  personal  privileges,  immunities,  domicil- 
iary privileges  and  exemptions  are  generally  those  of  the  diplomatic 
representative  of  whose  official  household  he  forms  a  part.^  As 
long  as  the  head  of  the  mission  is  present,  the  secretary  is  not 
recognized  by  any  foreign  government  as  being  authorized  to 
perform  a  single  official  act  otherwise  than  as  directed  by  the  head 
of  the  mission ;  and  it  is  said  to  follow,  as  a  necessary  consequence, 
that  in  his  official  conduct  the  secretary  is  under  the  direction, 
and  subordinate  to  the  control,  of  his  immediate  superior.- 

An  Act  of  July  1,  1916,  authorized  the  President,  "whenever 
he  considers  it  advisable  so  to  do  "  to  designate  and  assign  any 
secretary  (of  class  one)  as  counseloi  of  embassy  or  legation.^ 
This  authority  is  utilized.  In  numerous  instances  the  secretary 
of  highest  grade  is  so  designated.'*  This  action  on  the  part  of  the 
United  States  corresponds  with  the  practice  observed  by  other 
powers.^ 

C 

§  413.    Attaches. 

In  the  diplomatic  service  of  the  United  States  there  are,  in  addi- 
tion to  heads  of  missions,  the  offices  of  "secretary"  (of  embassy 

he  be  expressly  accredited  to  the  minister  for  foreign  affairs."  Communi- 
cation to  Mr.  Heard,  No.  151,  Dip.  Series,  Oct.  31,  1892,  MS.  Inst.  Corea,  I, 
414,  Moore,  Dig.,  IV,  445.     Also  In  re  Baiz,  135  U.  S.  403. 

See  Consuls,  Privileges  and  Immunities  under  International  Law  and 
Treaty,  infra,  §  464. 

1  Instructions  to  Diplomatic  Officers  of  the  United  States,  §  52. 

'  The  statement  in  the  text  is  embodied  in  §  31  of  the  Instructions  to  Diplo- 
matic Officers  of  the  United  States  (1897). 

Under  the  existing  law  appointments  of  secretaries  in  the  diplomatic  service 
are  by  commission  to  the  office  of  secretary  of  embassy  or  legation ;  and  such 
officers  are  to  be  assigned  to  posts  and  transferred  from  one  post  to  another 
by  order  of  the  President  as  the  interests  of  the  service  may  require.  Act  of 
Feb.  5,  1915,  Chap.  23,  §  1,  38  Stat.  805,  U.  S.  Comp.  Stat.  1918,  §  3130a. 
Secretaries  are  graded  according  to  a  classification  which  divides  them  into 
five  classes,  each  class  having  the  salary  affixed  thereto  by  the  statute.  Id., 
S  9 

3  Chap.  208,  39  Stat.  252,  U.  S.  Comp.  Stat.  1918,  §  3130aa. 

■•  According  to  the  Diplomatic  and  Consular  Service  of  the  United  States, 
corrected  to  July  26,  1919,  there  were  two  persons  designated  as  counselor 
and  attached  to  the  Embassy  at  Paris.  In  the  case  of  the  Embassy  at  Arch- 
angel, a  consular  officer  was  given  the  "rank  of  counselor"  although  appar- 
ently not  otherwise  designated  as  such  an  official. 

^  Documents  in  Moore,  Dig.,  IV,  434-436. 

717 


§  413]  AGENTS    OF   A   STATE 

or  legation,  as  the  case  may  be),  "second  secretary",  "third 
secretary",  "Chinese  secretary",  "Japanese  secretary",  "assistant 
Japanese  secretary",  "student  interpreter",  "mihtary  attache", 
"commerciar attache."  ^ 

A  military  or  naval  attache,  and  doubtless  likewise  any  other 
attache  of  an  American  mission,  except  a  secretary  of  embassy  or 
legation,  although  without  diplomatic  rank  "  in  the  sense  of  being 
in  the  line  of  representative  succession,  so  as  to  act  as  charge 
d'affaires  ad  interim,  is  regarded  as  being  attached  to  the  mission.'* 
His  name  appears  as  a  member  of  its  staff  in  the  diplomatic  list.^ 

A  foreign  military  or  naval  attache  is  presented  by  his  chief  to 
the  President  and  to  the  Secretary  of  War  or  of  the  Navy,  and  is 
thereafter  introduced  as  occasion  offers  to  other  high  officers  of  the 
Government  of  the  United  States.  In  1906,  Secretary  Root  de- 
clared that 

The  peculiar  and  delicate  functions  of  military  and  naval 
attaches,  combining  membership  of  the  official  diplomatic 
representation  of  their  own  government  with  the  added  privilege 
of  direct  intercourse  with  other  than  the  diplomatic  branches  of 
the  foreign  administration  and  even  of  official  association,  on 
some  occasions,  with  the  Head  of  the  State  and  with  the  highest 
officers  of  its  military  establishment,  make  it  desirable  that 

^  The  statement  in  the  text  is  based  upon  the  Diplomatic  and  Consular 
Service  of  the  United  States,  corrected  to  July  26,  1919. 

According  to  the  Diplomatic  and  Consular  Service  of  the  United  States, 
corrected  to  Jan.  23,  1915,  there  were  also  the  offices  of  "  Turkish  secretary  ", 
"assistant  Turkish  secretary",  and  "interpreter." 

That  the  relation  of  a  scientific  expert  attached  to  the  American  Embassy 
in  Berlin  in  1898  was  similar  to  that  of  a  military  or  naval  attache,  see  Mr. 
Moore,  Acting  Secv.  of  State,  to  Freiherr  Speck  von  Sternburg,  June  2,  1898, 
MS.  Notes  to  German  Legation,  XII,  139,  Moore,  Dig.,  IV,  439. 

Local  counsel  acting  in  behalf  of  a  diplomatic  mission  is  not  regarded  as  an 
official  representative  or  as  an  attache  thereof.  Mr.  Rockhill,  Assist.  Secy, 
of  State,  to  Mr.  Coudert,  June  17,  1896,  210  MS.  Dom.  Let.  666,  enclosing 
copy  of  instruction  to  Mr.  Eustis,  Ambassador  to  France,  No.  610,  April  30, 
1896,  Moore,  Dig.,  IV,  439. 

*  Mr.  Moore,  Acting  Secy,  of  State,  to  Freiherr  Speck  von  Sternburg,  June 
2,  1898,  MS.  Notes  to  German  Legation,  XII,  139,  Moore,  Dig.,  IV,  439. 

"Section  1744  Rev.  Stat,  requires  that  all  the  officers  in  the  diplomatic 
and  consular  service  who  are  mentioned  in  Section  1675  shall  be  citizens  of 
the  United  States.  This  is  the  plain  implication  of  the  section,  which  forbids 
payment  of  salaries  to  those  officers  unless  they  be  such  citizens.  The  officers, 
thus  mentioned,  range  from  ambassadors  down  to  second  secretaries  of  lega- 
tion, and  do  not  include  marshals,  interpreters,  or  other  subordinate  officers." 
Opinion  of  Mr.  Knox,  Atty.-Gen.,  Jan.  3,  1902,  23  Ops.  Attys.-Gen.  608, 
612. 

It  may  be  noted  that  by  the  Act  of  April  15,  1918,  Chap.  52,  making  ap- 
propriation for  the  Diplomatic  and  Consular  Service,  for  the  fiscal  year  ending 
June  30,  1919,  provision  was  made  for  the  employment  of  necessary  clerks 
at  embassies  and  legations,  "who,  whenever  hereafter  appointed,  shall  be  citi- 
zens of  the  United  States."     40  Stat.  519,  520. 

718 


COMMISSIONERS  AND  SPECIAL  ENVOYS         [§  414 

American  officers  serving  in  those  capacities  shall  enjoy  no  less 
privileges  than  their  colleagues  of  other  nationalities.^ 

Under  the  existing  law,  commercial  attaches  of  the  United 
States  are  appointed  by  the  Secretary  of  Commerce,  and  accredited 
through  the  Department  of  State.  Their  duties  are  to  investi- 
gate and  report  upon  such  conditions  in  the  manufacturing  indus- 
tries and  trade  of  foreign  countries  as  may  be  of  interest  to  the 
United  States.^ 


§  414.    Commissioners  and  Special  Envoys. 

When  persons  designated  as  commissioners  have  been  appointed 
to  perform  diplomatic  functions  in  behalf  of  the  United  States, 
they  have  been  regarded  by  it  as  diplomatic  officers.^  The  title 
is,  nevertheless,  vague,  and  as  Secretary  Foster  declared  in  1892, 
"only  the  language  and  purport  of  the  encumbent's  commission 
and  credential  letters  can  determine  whether  it  possesses  a  diplo- 
matic character."  "*  In  clothing  a  commissioner  with  such  a 
character,  the  fact  has  commonly  been  announced  in  his  com- 
mission, and  oftentimes  also  his  rank.^  Commissioners  are  not, 
at  the  present  time,  accredited  as  the  heads  of  permanent  missions 
of  the  United  States.^ 

Special  envoys  are  appointed  for  particular  purposes,  such  as 
the  negotiation  of  treaties,^  or  participation  in  international  con- 

1  Circular  Instruction  to  American  Diplomatic  Officers,  Feb.  14,  1906. 

2  Chap.  163,  §  1,  Act  of  March  3,  1917,  39  Stat.  1113,  U.  S.  Comp.  Stat. 
1918,  §  854a. 

'  See  in  this  connection,  opinion  of  Mr.  Cushing,  Atty.-Gen.,  7  Ops.  Attys., 
Gen.,  186, 192. 

"  Communication  to  Mr.  Heard,  No.  151,  Dip.  Series,  Oct.  31,  1892,  MS. 
Inst.  Corea,  I,  414,  Moore,  Dig.,  IV,  440. 

5  Mr.  Hay,  Secy,  of  State,  to  Secy,  of  the  Navy,  July  20,  1900,  relative  to 
the  commission  of  Mr.  W.  W.  Rockhill,  who  was  appointed  "commissioner 
of  the  United  States  to  China,  with  diplomatic  privileges  and  immunities", 
246  MS.  Dom.  Let.  485,  Moore,  Dig.,  IV,  440. 

6  The  Diplomatic  and  Consular  Service  of  the  United  States  corrected 
July  26,  1919,  makes  mention  ai  no  official  designated  as  commissioner. 

In  the  treaty  with  China  of  July  3,  1844,  the  representative  of  the  United 
States,  Mr.  Caleb  Cushing,  was  described  as  "Commissioner,  .  .  .  Envoy 
Extraordinary  and  Minister  Plenipotentiary."     Malloy's  Treaties,  I,  196. 

7  Thus  in  December,  1908,  Mr.  William  I.  Buchanan  was  commissioned  a 
special  commissioner  to  represent  the  President  with  full  power  to  confer  with 
the  Government  of  Venezuela  in  all  matters  relating  to  the  reestablishment 
of  diplomatic  relations  between  the  United  States  and  that  country.  Mr. 
Root,  Secy,  of  State,  to  Special  Commissioner  Buchanan,  Dec.  21,  1908,  For. 
Rel.  1909,  609.  See,  also,  numerous  earlier  instances  given  in  John  W.  Foster, 
The  Practice  of  Diplomacy,  Chap.  X. 

719 


§414]  AGENTS   OF   A   STATE 

ferences/  or  to  attend  ceremonies  deemed  to  possess  significance, 
such  as  the  marriage  of  a  foreign  monarch.^  Early  in  1917,  a 
High  Commission,  headed  by  Mr.  Elihu  Root,  was  sent  to  Russia.^ 
Special  envoys,  of  whatsoever  rank,  appointed  as  delegates  to 
an  international  conference  bear  credentials  not  necessarily  ad- 
dressed to  any  one  of  the  governments  taking  part  therein,  but 
rather  such  as  are  capable  of  exliibition  by  the  delegates  to  their 
colleagues  from  other  States,  in  proof  of  the  powers  given  to  con- 
fer and  conclude  agreements  in  respect  to  matters  of  mutual  con- 
cern and  interest.' 

e 

§  415.   Agents. 

The  United  States  does  not  at  the  present  time  seek  diplomatic 
representation  in  independent  States  through  persons  designated 

1  Thus,  for  example,  the  President  appointed  three  ambassadors  extraor- 
dinary (Messrs.  Joseph  H.  Choate,  Horace  Porter  and  Uriah  M.  Rose), 
and  four  ministers  plenipotentiaries  (Mr.  David  J.  Hill,  Rear-Admiral  Charles 
S.  Sperry,  Brig. -Gen.  George  B.  Davis  and  Mr.  William  I.  Buchanan),  all  of 
whom  were  described  as  delegates  plenipotentiaries,  as  well  as  two  technical 
delegates  (Messrs.  James  Brown  Scott  and  Charles  Henry  Butler)  to  repre- 
sent the  United  States  at  the  Second  Hague  Peace  Conference  in  1907.  See 
Final  Act  of  Oct.  18,  1907,  Malloy's  Treaties,  II,  2369. 

The  commissioning  of  a  special  representative  to  attend  an  international 
conference,  take  part  in  its  proceedings  and  even  sign  an  international  con- 
vention resulting  from  its  deliberations,  does  not  necessarily  indicate  that  the 
delegate  is  regarded  by  the  State  appointing  him  as  a  diplomatic  officer,  or 
as  one  entitled,  while  engaged  on  his  mission,  to  the  privileges  of  such  an 
officer.  The  view  of  his  own  country  respecting  his  status  is  to  be  derived 
from  the  form  or  language  of  his  commission,  and  is  likely  to  be  reflected 
also  in  the  description  of  himself  embodied  in  the  convention  to  which  he 
attaches  his  signature.  The  representatives  of  the  United  States  (Rear- 
Admiral  Charles  H.  Stockton  and  Professor  George  G.  Wilson)  at  the  Inter- 
national Naval  Conference  of  1908  and  1909  were  appointed  delegates  plenipo- 
tentiaries. Instructions  of  Mr.  Root,  Secy,  of  State,  Nov.  21,  1908,  Charles' 
Treaties,  327.  The  Declaration  of  London  —  the  product  of  the  Conference  — 
described  the  several  representatives  who  signed  that  document  as  "pleni- 
potentiaries." Id.,  282.  On  the  other  hand,  the  representatives  of  the 
United  States  at  the  Fourth  International  Conference  of  American  States  at 
Buenos  Aires  in  1910,  appeared  to  have  been  commissioned  merely  as  "dele- 
gates." Instructions  of  Mr.  Knox,  Secy,  of  State,  June  14,  1910,  For.  Rel. 
1910,  14.  In  the  preambles  of  the  conventions  adopted  at  the  Conference, 
the  several  negotiators  were  described  as  "delegates",  while  the  same  in- 
dividuals were  described  in  relation  to  their  signing  the  conventions,  either  as 
"plenipotentiaries",  or  as  "plenipotentiaries  and  delegates."     Id.,  50-56. 

2  See,  for  example.  For.  Rel.  1906,  II,  1344-1347,  concerning  the  special 
embassy  sent  by  the  United  States  to  attend  the  celebration  of  the  marriage 
of  the  King  of  Spain  to  Princess  Victoria  Eugenia  of  Battenberg,  in  May, 
1906;   Frederick  Van  Dyne,  Our  Foreign  Service,  52-53. 

^  Address  of  Mr.  Root  as  head  of  the  Commission,  at  Petrograd,  Official 
Bulletin,  June  21,  1917,  I,  No.  36. 

^  Mr.  Adee,  Acting  Secv.  of  State,  to  Senor  Don  Pedro  y  Zeledon,  Sept. 
24,  1889,  MS.  Notes  to  Costa  Rica,  II,  115,  Moore,  Dig.,  IV,  463,  in  ref- 
erence to  an  autograph  letter  from  the  President  of  Costa  Rica  to  the  Presi- 
dent of  the  United  States,  accrediting  one  Mr.  Aragon  as  the  delegate  of 

720 


NON-DIPLOMATIC  MISSIONS  [§  416 

as  agents.  The  Department  of  State  has,  however,  expressed 
the  opinion  that  such  officials  would  come  within  the  second  class 
of  public  ministers  described  in  the  first  rule  of  the  Congress  of 
Vienna  as  "  envoys,  ministers,  or  other  persons  accredited  to  sov- 
ereigns." ^ 

The  diplomatic  representative  of  the  United  States  in  Egypt  has 
long  been  designated  as  "agent  and  consul  general."^  Nor  has 
the  protection  of  Egypt  by  Great  Britain  served  as  yet  to  cause  the 
United  States  to  relinquish  diplomatic  representation  or  to  change 
the  title  of  its  officer. 

f 

§  416.   Non-Diplomatic  Missions. 

The  United  States  has  on  several  occasions  sent  representatives 
abroad  upon  missions  in  which  the  service  involved  called  for  the 
exercise  of  no  diplomatic  functions.  Such  individuals  have,  ac- 
cordingly, not  been  clothed  with  a  diplomatic  character.^  This 
was  true  even  with  respect  to  the  secret  and  confidential  mission 
sent  to  Europe  in  1861,  by  Secretary  Seward,  for  the  purpose  of 
influencing  sentiment  in  regard  to  the  Civil  War.^  Commissions 
sent  to  investigate  political  conditions  in  foreign  States  have  been 
similarly  regarded. 

In  1902,  Mr.  William  H.  Taft,  Civil  Governor  of  the  Philippines, 
was  commissioned  by  the  Secretary  of  War  to  proceed  to  Rome, 
and  there  ascertain  what  authorities  of  the  Roman  Catholic  Church 
were  empowered  to  sell  to  the  Government  of  the  United  States 
lands  belonging  to  the  religious  orders  in  the  Philippine  Islands; 
and  upon  finding  that  the  officers  of  the  Church  at  Rome  possessed 
such  power,  to  endeavor  to  reach  a  basis  of  negotiation.  The 
Secretary  of  War  declared  that  the  errand  would  "not  be  in  any 

Costa  Rica  to  the  Conference  of  American  States,  and  respecting  the  request 
for  the  designation  of  a  day  for  the  formal  presentation  to  the  President  by 
Mr.  Aragon  of  his  letter.     See,  also,  Oppenheim,  2  ed.,  I,  §  377. 

1  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Schuyler,  June  28,  1880,  MS.  Inst. 
Roumania,  I,  1,  5-6,  Moore,  Dig.,  IV,  444,  concerning  the  appointment  of 
Mr.  Schuyler  as  diplomatic  agent  and  consul-general  of  the  United  States  to 
Roumania.     Also  documents  in  Moore,  Dig.,  IV,  443-445. 

Concerning  the  practical  concession  and  subsequent  cessation  of  the  recogni- 
tion by  the  United  States  of  the  representative  capacity  of  Mr.  John  Hitz, 
in  1868,  as  political  agent  of  the  Swiss  Confederation,  see  Moore,  Dig.,  IV, 
441-443,  and  documents  there  cited. 

2  Rev.  Stat.  §  1676,  amended  March  3,  1875,  Chap.  153,  18  Stat.  483, 
U.  S.  Comp.  Stat.  1918,  §  3119. 

3  At  times  American  diplomatic  officers  have  been  burdened  with  the  per- 
formance of  non-diplomatic  duties.  Such  officers  while  so  employed  have  not 
ceased  to  retain  their  diplomatic  character. 

*  Moore,  Dig,,  IV,  446-447,  and  documents  there  cited. 

721 


§416]  AGENTS   OF   A   STATE 

sense  or  degree  diplomatic  in  its  nature",  but  rather  "purely  a 
business  matter  of  negotiation."  ^  Governor  Taft  was  successful 
in  his  mission. 

It  is  not  believed  that  commissioners  appointed  to  fulfill  judicial 
functions  through  service  on  mixed  claims  commissions,  joint  com- 
missions or  courts  of  arbitration  are  to  be  regarded  as  deriving 
from  their  offices  a  diplomatic  character.^  According  to  Article 
XL VI  of  the  Hague  Convention  of  1907,  for  the  Pacific  Settlement 

1  The  statement  in  the  text  is  based  upon  that  contained  in  Moore,  Dig. 
IV,  447-448,  in  which  the  facts  stated  are  taken  from  a  paper  by  Hon.  Simeon 
E.  Baldwin,  in  the  Yale  Law  Journal  for  Nov.  1902,  xii,  1. 

Self-constituted  Missions.  The  United  States  has  strongly  condemned, 
and  by  Act  of  Congress  declared  to  be  illegal,  self-constituted  missions.  Act 
of  Jan.  30,  1799,  1  Stat.  613,  reproduced  in  §  5,  Chap.  321,  35  Stat.  1088,  Rev. 
Stat.  §  5335.  By  the  terms  of  this  Act  every  citizen  of  the  United  States, 
wheresoever  residing,  who,  without  the  consent  of  the  Government,  "di- 
rectly or  indirectly  commences  or  carries  on  any  verbal  or  w^ritten  corre- 
spondence or  intercourse  with  any  foreign  government  or  any  officer  or  agent 
thereof,  with  an  intent  to  influence  the  measures  or  conduct  of  any  foreign  gov- 
ernment or  of  any  officer  or  agent  thereof,  in  relation  to  any  disputes  or 
controversies  with  the  United  States,  or  to  defeat  the  measures  of  the  Gov- 
ernment of  the  United  States",  and  every  person,  being  a  citizen  of  or  resi- 
dent within  the  United  States  or  in  any  place  subject  to  the  jurisdiction 
thereof,  and  not  duly  authorized,  who  counsels,  advises  or  assists  in  any  such 
correspondence  with  such  intent,  subjects  himself  to  fine  and  imprisonment. 
Respecting  the  Act  see  Moore,  Dig.,  IV,  448-450,  and  documents  there  cited, 
with  reference  especialh'  to  the  mission  of  Dr.  George  Logan  in  1798;  also 
Lindell  T.  Bates,  Unauthorized  Diplomatic  Intercourse  by  American  Citi- 
zens with  Foreign  Powers  as  a  Criminal  Offense  under  the  Laws  of  the 
LTnited  States,  New  York,  1915;  Charles  Warren,  History  of  Laws  Prohibit- 
ing Correspondence  with  a  Foreign  Government  and  Acceptance  of  a  Com- 
mission, 1917,  Senate  Doc.  No.  696,  64  Cong.,  2  Sess. 

According  to  Title  VIII,  of  the  so-called  Espionage  Act  of  June  15,  1917, 
40  Stat.  226,  §  1,  it  is  rendered  a  criminal  offense  for  any  per.son,  in  relation 
to  any  dispute  or  controversy  between  a  foreign  government  and  the  United 
States,  willfully  and  knowingly  to  make  any  untrue  statement,  either  orally 
or  in  writing,  under  oath  before  any  persons  authorized  and  empowered  to 
administer  oaths,  which  the  affiant  has  knowledge  or  reason  to  beUeve  will, 
or  may  be  used  to  influence  the  measures  or  conduct  of  any  foreign  govern- 
ment, or  of  any  officer  or  agent  of  any  foreign  government,  to  the  injury  of  the 
United  States,  or  with  a  view  or  intent  to  influence  any  measure  of  or  action 
by  the  Government  of  the  United  States,  or  of  any  branch  thereof,  to  the 
injury  of  the  United  States.  §  3  of  the  same  Title  declares  that  "Whoever, 
other  than  a  diplomatic  or  consular  officer  or  attache,  shall  act  in  the  United 
States  as  an  agent  of  a  foreign  government  without  prior  notification  to  the 
Secretary  of  State,"  shall  be  subjected  to  punishment. 

2  Mr.  Monroe,  Secy,  of  State,  to  Mr.  Harris,  Charge  d' Affaires  at  St.  Peters- 
burg, July  31,  1816,  MS.  Inst.  United  States  Ministers,  VIII,  89,  Moore, 
Dig.,  IV,  428.  Also  Moore,  Arbitrations,  345-349,  respecting  the  question 
as  to  the  immunities  claimed  in  1796  by  Messrs.  Gore  and  Pinkney,  Ameri- 
can commissioners  under  Art.  VII,  of  the  Jay  Treaty  with  Great  Britain  of 
Nov.  19,  1794. 

Mexico  invested  its  commissioners  serving  on  the  Mixed  Claims  Com- 
mission under  the  convention  with  the  United  States  of  April  11,  1839,  Mal- 
loy's  Treaties,  I,  1101,  with  a  diplomatic  character.  "By  their  respective 
commissions  each  of  them  was  appointed  'a  plenipotentiary  of  the  Mexican 
Republic'  as  well  as  a  commissioner."     Moore,  Arbitrations,  1220. 

722 


FOREIGN    MISSIONS    IN    THE    UNITED    STATES     [§  417 

of  International  Disputes,  it  is  provided  that  members  of  a  tribunal 
selected  from  the  Permanent  Court  shall,  "  in  the  exercise  of  their 
duties  and  out  of  their  own  country,  enjoy  diplomatic  privileges 
and  immunities."  ^  Such  a  provision  is  for  the  purpose  both  of 
safeguarding  a  judicial  officer  from  interference  in  the  performance 
of  his  duties,  and  of  enliancing  respect  for  the  office  which  he  holds. 
It  purports  to  confer  upon  an  arbitrator  certain  rights  possessed 
by  a  public  minister  without  suggesting  that  the  former  is  in  any 
sense  a  diplomatic  representative  of  the  State  appointing  him,  or 
that  he  is  engaged  in  any  diplomatic  service  in  its  behalf. 

It  must  be  clear  that  a  general  agreement  to  clothe  an  adminis- 
trative officer  with  diplomatic  privileges  and  immunities  is  not  de- 
cisive that  the  individual  is  regarded  as  possessed  of  a  diplomatic 
character.^ 

g 
§  417.  Foreign  Diplomatic  Missions  in  the  United  States. 
Following  the  outbreak  of  The  World  War,  and  notably  after 
the  participation  by  the  United  States  therein  as  a  belligerent, 
foreign  diplomatic  missions  at  Washington  were  enlarged  not  only 
in  personnel,  but  also  in  the  functions  entrusted  to  thie  officials 
accredited.  Thus,  Lord  Reading  presented  credentials  as  British 
High  Commissioner,  as  well  as  Ambassador  Extraordinary  and 
Plenipotentiary.^  The  British  Government,  moreover,  found  it 
expedient  to  accredit  also  an  officer  with  the  rank  of  Minister 
Plenipotentiary  as  an  aide  to  the  Ambassador.^  Attached  to 
certain  embassies  were  also  special  missions  for  financial  or  other 
purposes  and  headed  by  an  officer  of  specified  diplomatic  rank, 
and  given  a  particular  designation  such  as  "Financial  Commis- 
sioner General."  ^    These  special  supplementary  missions  attached 

1  Malloy's  Treaties,  II,  2236. 

^  According  to  Art.  VII  of  the  Covenant  of  the  League  of  Nations,  "Repre- 
sentatives of  the  Members  of  the  League  and  officials  of  the  League  when 
engaged  on  the  business  of  the  League  shall  enjoy  diplomatic  privileges  and 
immunities." 

3  Official  Bulletin,  Feb.  14,  1918,  No.  234,  p.  5. 

*  Thus  in  October,  1919,  Sir  William  Tyrrell  was  appointed  Minister 
Plenipotentiary,  on  the  staff  of  Viscount  Grey,  the  Ambassador.  It  may  be 
observed  that  other  States  were  not  reluctant  to  pursue,  upon  occasion,  a 
similar  course,  especially  where  it  was  deemed  wise  to  attach  a  special  mission 
of  importance  to  an  embassy. 

5  Thus  in  1919,  the  Italian  Government  supplemented  its  Embassy  at 
Washington  with  a  special  mission  headed  by  an  officer  with  the  rank  of  En- 
voy Extraordinary  and  Minister  Plenipotentiary,  and  designated  as  "Finan- 
cial Commissioner  General",  and  whose  headquarters  were  established  at 
New  York.     Diplomatic  List,  January,  1920. 

723 


§417]  AGENTS   OF  A   STATE 

to  permanent  embassies  or  legations  doubtless  possessed  an  essen- 
tially diplomatic  character,  although  the  functions  of  the  individuals 
composing  them  were  in  large  degree  of  a  commercial  character, 
pertaining  to  the  purchase  of  supplies  and  war  material,  or  to  the 
negotiation  of  loans  and  the  extension  of  credit. 


724 


TITLE    C 
BEGINNING  AND  END  OF  MISSION 

1 

§  418.   Appointments. 

"The  power  to  appoint  diplomatic  agents,  and  to  select  for 
employment  any  one  out  of  the  varieties  of  the  class,  according 
to  his  judgment  of  the  public  service,  is  a  constitutional  function 
of  the  President,  not  derived  from,  nor  limitable  by  Congress,  but 
requiring  only  the  ultimate  concurrence  of  the  Senate;  and  so  it 
was  understood  in  the  early  practice  of  the  Government."  ^ 

The  President  has,  on  numerous  occasions,  without  the  advice 
or  consent  of  the  Senate,  employed  such  agencies  as  he  has  seen 
fit,  for  the  negotiation  of  treaties  or  the  making  of  investigations.^ 
The  names  of  the  plenipotentiaries  to  adjust  the  existing  contro- 
versies with  France  in  1799,  and  to  conclude  a  treaty  of  peace 

^  The  language  quoted  is  that  of  Mr.  Gushing,  Attorney-General,  May 
25,  1855,  in  an  exhaustive  opinion  respecting  ambassadors  and  other  public 
ministers  of  the  United  States,  7  Ops.  Attys.-Gen.  186,  193.  See,  also,  state- 
ment in  Moore,  Dig.,  IV,  451. 

^  Declared  Mr.  Sherman,  Ghairman  of  the  Senate  Gommittee  on  Foreign 
Relations,  in  the  course  of  a  debate  upon  a  treaty  concluded  with  Great 
Britain  Feb.  15,  1888,  by  representatives  appointed  by  the  President  without 
the  advice  and  consent  of  the  Senate :  "  The  President  of  the  United  States 
has  the  power  to  propose  treaties,  subject  to  ratification  by  the  Senate, 
and  he  may  use  such  agencies  as  he  chooses  to  employ,  except  that  he  can- 
not take  any  money  from  the  Treasury  to  pay  those  agents  without  an  ap- 
propriation by  law.  He  can  use  such  instruments  as  he  pleases.  ...  In 
my  judgment,  he  has  a  right  to  use  such  means  as  are  necessary  to  bring 
about  any  treaty."  Gongressional  Record,  Aug.  7,  1888,  pp.  7285,  7287, 
Moore,  Dig.,  IV,  455-456.  For  the  report  of  the  Senate  Committee  on  For- 
eign Relations  adverse  to  the  treaty,  see  Reports  of  Senate  Gommittee  on 
Foreign  Relations,  VI,  259.  For  a  minority  report  sanctioning  the  method 
of  negotiating  the  treaty,  id.,  VI,  286,  332-333. 

In  1913  President  Wilson  sent  Mr.  John  Lind,  formerly  Governor  of 
Minnesota,  as  his  "personal  spokesman  and  representative"  to  Mexico  to 
negotiate  with  parties  exercising  authority  in  that  country.  Address  of 
President  Wilson  to  the  Gongress  Aug.  27,  1913,  Am.  J.,  VII,  Supp.,  279, 
281. 

See  list  of  instances  of  appointments  in  Moore,  Dig.,  IV,  452-457,  indicat- 
ing the  discussion  that  has  at  times  arisen  respecting  the  constitutionality 
of  executive  appointments  lacking  Senatorial  approval.  Also  E.  S.  Cor- 
win,  The  President's  Gontrol  of  Foreign  Relations,  49-70. 

725 


§418]  BEGINNING   AND   END   OF   MISSION 

with  Great  Britain  to  terminate  the  War  of  1812,  were  submitted 
to  the  Senate  for  its  approval.^  It  does  not  appear  that  President 
Polk  pursued  such  a  course  in  appointing  Mr.  Trist,  to  negotiate 
a  treaty  of  peace  with  Mexico.^  The  commissioners  plenipoten- 
tiary chosen  by  President  McKinley  to  negotiate  a  treaty  of 
peace  with  Spain  in  1898,^  and  likewise  those  selected  by  President 
Wilson  in  1918,  to  conclude  such  a  treaty  with  Germany,  were 
appointed  without  the  approval  of  the  Senate. 

It  seems  to  be  the  accepted  view  that  the  provisions  of  the 
Constitution  forbid  the  permanent  appomtment  of  an  individual 
to  the  regular  diplomatic  service  of  the  United  States  without 
the  approval  of  the  Senate.^ 


§  419.   Reciprocity  of  Treatment. 

As  a  general  rule,  no  government  sends  to,  or  at  least  continues 
in,  another  country  a  minister  of  a  higher  grade  than  that  country 
may  reciprocate.^ 

An  Act  of  Congress  of  March  1,  1893,  authorized  the  President 
when  advised  that  any  foreign  government  was  or  was  about  to 
be  represented  in  the  United   States  by  an   ambassador,  envoy 

*  United  States  Peace  Commissions,  statement  showing  all  commissioners 
appointed  by  the  President  to  negotiate  terms  of  peace  upon  the  conchision 
of  the  various  wars  in  which  the  United  States  has  been  engaged,  1775-1898 
Senate  Doc.  No.  311,  65  Cong.,  3  Sess. 

*  Id.,  where  it  is  declared  that  the  commission  of  Mr.  Trist  does  not  ap- 
pear in  the  Senate  Executive  Journal. 

Concerning  the  secrecy  attending  Mr.  Trist's  appointment,  see  Polk's 
Diary,  II,  465-467,  quoted  in  Geo.  L.  Rives,  United  States  and  Mexico,  II, 
423-424. 

^  The  commissions  of  these  plenipotentiaries  were  issued  Sept.  13,  1898, 
when  the  Senate  was  not  in  session.  See,  also,  S.  B.  Crandall,  Treaties, 
Their  Making  and  Enforcement,  2  ed.,  1916,  §§  37-38. 

*  Constitution,  Art.  II,  Section  2,  paragraph  2,  where  it  is  provided  that 
the  President  shall  "nominate,  and  by  and  with  the  Advice  and  Consent 
of  the  Senate,  shall  appoint  Ambassadors,  other  public  Ministers  and  Con- 
suls." 

This  provision  is  not  regarded  as  forbidding  a  recess  appointment  when  the 
Senate  is  not  in  session,  enabling  the  appointee  to  act  temporarily,  pending 
his  nomination  and  confirmation  when  the  Senate  convenes. 

*  The  language  of  the  text  is  that  of  Mr.  Marcy,  Secy,  of  State,  to  Mr. 
Pennmgton,  Chairman  of  the  Committee  on  Foreign  Affairs,  House  of  Repre- 
sentatives, May  23,  1856,  7  MS.  Report  Book,  274,  Moore,  Dig.,  IV,  458. 
Mr.  Marcy  added:  "This  Tvle,  however,  is  by  no  means  invariable,  and  for 
various  reasons  it  seems  to  be  proper  to  leave  it  to  the  President  to  deter- 
mine the  cases  in  which  exceptions  ought  to  be  made.  There  are  not  suffi- 
cient advantages  in  having  ministers  of  the  highest  grade  accredited  to  all 
governments  —  the  most  inconsiderable  as  well  as  the  most  important  —  to 
justify  a  departure  from  a  long  prevalent  and  common  usage,  with  many 
good  reasons  to  sustain  it." 

726 


LETTERS   OF   CREDENCE  [§420 

extraordinary,  minister  plenipotentiary,  minister  resident,  special 
envoy,  or  charge  d'affaires,  to  direct  that  the  representative  of 
the  United  States  to  such  government  should  have  the  same  desig- 
nation.^ Shortly  thereafter.  Great  Britain,  France,  Italy  and 
Germany  conferred  upon  their  respective  representatives  at 
Washington,  the  rank  and  title  of  ambassador.  President  Cleve- 
land responded  by  elevating  the  representatives  of  the  United  States 
accredited  to  each  of  those  countries  to  the  same  grade.-  A  like 
elevation  of  mission  reciprocally  followed  with  respect  to  certain 
other  States.  The  Act  of  1893,  was  however,  repealed  in  1909, 
by  an  enactment  declaring  that  thereafter  no  new  ambassadorship 
should  be  created  unless  the  same  should  be  provided  for  by  act 
of  Congress.^  Since  that  time  the  Congress  has,  nevertheless, 
raised  the  rank  of  certain  missions  of  the  United  States  to  that  of 
the  highest  grade. ^ 


CREDENTIALS  AND  RECEPTION 

a 

§  420.   Letters  of  Credence. 

Upon  arrival  at  his  post,  it  becomes  the  duty  of  a  diplomatic 
representative  of  the  United  States  to  seek,  through  the  actual  in- 
cumbent of  the  mission,  an  informal  conference  with  the  minister 
for  foreign  affairs  or  with  such  other  officer  of  the  government 
to  which  he  is  accredited  as  may  be  found  authorized  to  act  in 
the  premises,  and  to  arrange  with  him  for  an  official  reception. 
The  newly  arrived  representative  should  also,  in  his  own  name, 
address  a  formal  note  to  the  minister  for  foreign  affairs,  communi- 
cating the  fact  of  his  appointment  and  rank,  and  requesting  the 
designation  of  a  time  and  place  for  the  presentation  of  his  letter 
of  credence.^ 

Should  the  representative  by  reason  of  his  grade  bear  a  letter 
of  credence  signed  by  the  President  and  addressed  to  the  chief 

1  27  Stat.  496. 

2  President  Cleveland,  Annual  Message,  Dec.  4,  1893,  For.  Rel.  1893, 
xii,  Moore,  Dig.,  IV,  739.  Respecting  the  appointment  of  the  first  British 
Ambassador  to  the  United  States,  Sir  Julian  Pauncefote,  and  of  the  first 
American  Ambassador  to  Great  Britain,  Mr.  Thomas  F.  Bayard,  see  For. 
Rel.  1893,  333,  334,  and  336. 

3  Act  of  March  2,  1909,  Chap.  235,  35  Stat.  672. 

*  As  a  recent  instance,  see  Act  of  March  4,  1919,  Chap.  123,  making  ap- 
propriation for  the  salary  of  an  ambassador  extraordinary  and  plenipo- 
tentiary to  Peru,  40  Stat.  1325. 

*  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  7. 

727 


§420]  BEGINNING  AND   END   OF   MISSION 

of  the  government,  the  representative  should,  upon  asking  an 
audience  for  the  purpose  of  presenting  the  original  letter  in  per- 
son, communicate  to  the  minister  for  foreign  affairs  the  "open 
office  copy"  accompanying  the  original  instructions.  The  repre- 
sentative is  instructed  by  the  Department  of  State  to  prepare 
and  retain  in  the  archives  of  his  mission  a  copy  of  his  letter  of 
credence.^ 

Upon  the  occasion  of  presenting  ceremonial  letters  of  credence 
or  of  recall  to  the  head  of  the  government,  it  is  usual  at  most  capitals 
for  the  retiring  or  incoming  diplomatic  representative  of  the  United 
States  to  make  a  brief  address  pertinent  to  the  occasion,  to  be  writ- 
ten and  spoken  in  English.  Before  the  day  fixed  for  his  audience 
or  reception  or  of  leave-taking,  it  is  said  to  be  the  duty  of  the 
representative  to  furnish  the  minister  for  foreign  aft'airs  with  a 
copy  of  the  remarks  proposed,  in  order  that  a  suitable  reply  thereto 
may  be  prepared.  It  is  required  that  a  copy  of  the  address  and 
of  the  reply  be  sent  to  the  Department  of  State. - 

It  is  the  practice  of  the  United  States  to  forward  new  letters 
of  credence  accrediting  the  minister  to  the  new  sovereign  or  head 
of  the  State  in  case  of  a  change  thereof.^  This  is  not  done,  however, 
in  the  event  of  the  mere  change  of  the  title  of  the  head  of  the 
State.^ 

b 

§  421.  End  of  Mission. 

The  processes  whereby  a  diplomatic  mission  is  ended  are  dis- 
tinct from  the  causes  which  may  set  them  in  operation.  The 
former  rather  than  the  latter  are  here  observed. 

1  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  8. 
If  the  diplomatic  representative  of  the  United  States  be  of  the  rank  of 
charge  d'affaires,  bearing  a  letter  of  credence  addressed  to  the  minister  for 
foreign  affairs,  the  former  is  instructed,  upon  addressing  to  the  latter  the 
formal  note  relative  to  the  fact  of  appointment  and  rank  and  respecting 
the  opportunity  for  the  presentation  of  the  letter  of  credence,  to  com- 
municate to  the  minister  the  office  copy  of  that  letter,  and  to  await  his 
pleasure  as  to  receiving  the  original  in  a  personal  interview.     Id.,  §  9. 

2  Id.,  §10.     The  text  of  §§  7-10  is  contained  in  Moore,  Dig.,  IV,  461. 

See,  for  example,  remarks  of  Mr.  Boris  Bakhmeteff,  upon  the  presentation 
of  his  credentials  as  Russian  Ambassador,  July  .5,  1917,  Official  Bulletin, 
July  6,  1917,  I,  No.  48.  Concerning  letters  of  credence,  see  Oppenheim, 
2  ed.,  I,  447. 

Respecting  the  presentation  of  an  envoy's  credentials  when  addressed  to 
the  President  of  the  United  States,  see  Mr.  Bayard,  Secy,  of  State,  to  Mr. 
Varas,  Feb.  7,  1889,  MS.  Notes  to  Chile,  VI,  36i;  Moore,  Dig.,  IV,  467. 

^  Mr.  Fish,  Secy,  of  State,  to  Gen.  Schenck,  Minister  to  Great  Britain, 
No.  719,  April  27,  1875,  MS.  Inst.  Great  Britain,  XXIV,  59,  Moore,  Dig.,  IV, 
462. 

''  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Allen,  Charge  d' Affaires,  Nov.  30, 
1897,  For.  Rel.  1898,  485,  Moore,  Dig.,  IV,  463. 

728 


END  OF  MISSION  [§  421 

The  announcement  by  a  government,  for  whatsoever  reason, 
that  the  oflfiee  of  a  foreign  minister  is  at  an  end/  or  of  a  refusal  to 
hold  further  official  intercourse  with  him,  terminates  his  mission.^ 
According  to  existing  practice  in  such  cases,  the  actual  termina- 
tion of  the  diplomatic  function  of  the  minister  by  the  State  to 
which  he  is  accredited,  is  accomplished  by  the  delivery  to  him  of 
his  passports.^ 

The  death  of  a  minister  puts  an  end  to  his  mission ;  ^  likewise, 
the  loss  by  a  State  of  the  power  and  right  to  deal  with  diplomatic 
representatives,  by  reason,  for  example,  of  its  very  extinction,^ 

1  Mr.  Knox,  Secy,  of  State,  in  a  communication  to  the  Nicaraguan  Charge 
d'Affaires,  Dec.  1,  1909,  respecting  the  revolution  then  in  progress  in  Nicara- 
gua, and  announcing  the  unwillingness  of  the  President  to  maintain  there- 
after regular  diplomatic  relations  with  the  Government  of  President  Zelaya, 
said:  "From  the  foregoing  it  will  be  apparent  to  you  that  your  office  of 
charge  d'affaires  is  at  an  end.  I  have  the  honor  to  inclose  your  passport, 
for  use  in  case  you  desire  to  leave  this  country.  I  would  add  at  the  same 
time  that,  although  your  diplomatic  quality  is  terminated,  I  shall  be  happy  to 
receive  you,  as  I  shall  be  happy  to  receive  the  representative  of  the  revolution, 
each  as  the  unofficial  channel  of  communication  between  the  Government 
of  the  United  States  and  the  de  facto  authorities  to  whom  I  look  for  the  pro- 
tection of  American  interests  pending  the  establishment  in  Nicaragua  of  a 
Government  with  which  the  United  States  can  maintain  diplomatic  relations." 
For.  Rel.  1909,  455,  457. 

On  Aug.  4,  1914,  M.  Davignon,  Belgian  Minister  for  Foreign  Affairs, 
wrote  to  Herr  von  Below  Saleske,  German  Minister:  "I  have  the  honour  to 
inform  your  Excellency  that  from  today  the  Belgian  Government  are  un- 
able to  recognize  your  diplomatic  status  and  cease  to  have  official  relations 
with  you.  Your  Excellency  will  find  enclosed  the  passports  necessary  for 
your  departure  with  the  staff  of  the  legation."  Diplomatic  Correspondence 
Respecting  the  War  published  by  the  Belgian  Government.     Misc.  No.  12, 

1914,  Cd.  7627,  p.  28. 

2  See,  for  example,  Mr.  Bayard,  Secy,  of  State,  to  Lord  Sackville,  the 
British  Minister,  Oct.  30,  1888,  For.  Rel.  1888,  II,  1672,  Moore,  Dig.,  IV, 
537 ;  also  Dr.  Paul,  Venezuelan  Minister  for  Foreign  Affairs,  to  Mr.  de  Reus, 
Minister  Resident  of  the  Netherlands,  July  20,  1908,  For.  Rel.  1909,  631. 

3  Thus,  early  on  the  morning  of  April  21,  1898,  Mr.  Woodford,  Ameri- 
can Minister  at  Madrid,  was  notified  officially  by  the  Spanish  Minister  of 
State  that  diplomatic  relations  with  the  United  States  had  been  severed,  "  all 
official  communication  between  their  respective  representatives  ceasing." 
Thereupon  Mr.  Woodford  was  obliged  to  write  to  the  Minister  of  State  re- 
questing his  passports  and  a  safe  conduct  to  the  French  frontier.  For.  Rel. 
1898,  767. 

"Letters  of  safe  conduct,  commonly  called  passports,  are  given  to  foreign 
ministers  traveling  in  or  departing  from  the  United  States."  G.  Hunt,  The 
American  Passport,  35,  Moore,  Dig.,  Ill,  1002. 

See  Mr.  Lansing,  Secy,  of  State,  to  the  German  Ambassador,   Dec.  18, 

1915,  respecting  the  obtaining  of  safe  conducts  for  the  German  Military  and 
Naval  Attaches  who  had  been  recalled,  American  White  Book,  European 
War,  III,  327. 

*  Respecting  the  death  of  Dr.  Azpiroz,  Mexican  Ambassador,  in  1905,  and 
the  removal  of  his  remains  to  Mexico  on  an  American  warship,  see  For.  Rel. 
1905,  654-655. 

*  See  abstract  in  Moore,  Dig.,  I,  128,  of  an  instruction  of  Feb.  27,  1795,  of 
Mr.  Randolph,  Secy,  of  State,  to  Mr.  Adams,  Minister  to  the  Netherlands, 
MS.  Inst,  to  U.  S.  Ministers,  II,  323,  324,  regarding  the  contingency  should 
the  United  Netherlands  become  a  dependency  of  France. 

729 


§421]  BEGINNING  AND   END   OF   MISSION 

or  of  the  transfer  of  the  control  of  its  foreign  affairs  to  another 
State. ^ 

The  change  of  a  head  of  a  State,  or  the  change  of  its  government, 
is  not  beheved  to  terminate  a  foreign  mission.  The  utmost  con- 
sequence of  either  event  is  the  suspension  of  the  functions  of  the 
minister  until  the  presentation  of  new  letters  of  credence.^ 

A  State  may  at  will  put  an  end  to  the  mission  of  its  own  minister, 
by  recalling  him,  or  by  removing  him  or  permitting  his  resignation 
from  its  service.  The  Instructions  to  the  Diplomatic  Officers  of 
the  United  States  declare  : 

A  recall  is  usually  accomplished  at  the  pleasure  of  the  President 
during  a  session  of  the  Senate,  by  sending  to  that  body  the  nomi- 
nation of  the  officer's  successor.  Upon  the  confirmation  and 
commission  of  his  successor,  the  original  incumbent's  official 
functions  cease.  He  is,  however,  expected  to  remain  at  his  post 
until  duly  relieved.  If  circumstances  require  otherwise,  the  case 
must  be  governed  by  the  special  instructions  of  the  Secretary 
of  State. 

In  any  case,  a  diplomatic  officer's  official  functions  do  not 
cease  until  he  has  received  notification  of  the  appointment  of  his 
successor,  either  by  specific  instruction  from  the  Department 
of  State  or  by  the  exhibition  of  his  successor's  commission. 
A  diplomatic  officer  may  be  recalled  while  on  leave  of  absence 
and  his  successor  appointed  as  above.  In  such  case,  his  in- 
cumbency, and  with  it  his  leave  of  absence,  ceases  on  the  re- 
ceipt by  him  of  official  notification  of  the  fact.^ 

When  the  retiring  representative  is,  like  his  successor,  of  the 
grade  of  ambassador  extraordinary  and  plenipotentiary,  envoy 
extraordinary  and  minister  plenipotentiary,  or  minister  resident, 
it  is  said  to  be  customary  for  him  to  present  his  letter  of  recall  in 

^  For.  Rel.  1905,  612-616,  631-634,  respecting  the  assumption  of  super- 
vision by  Japan  in  1905,  over  Korean  foreign  and  administrative  affairs,  and 
the  withdrawal  of  the  American  Legation  from  Korea. 

2  Opinion  of  Mr.  Gushing,  Atty.-Gen.,  7  Ops.  Attys.-Gen.,  582,  Moore, 
Dig.,  IV,  472.  Also  Agency  of  Canadian  Car  &  F.  Co.  v.  Amer.  Can  Co.,  253 
Fed.  152. 

3  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §§  278-280. 

"  Letters  of  credence  to  permanent  ambassadors  are  now  usually  given  with- 
out time  limit ;  but  when  there  is  time  specified  the  mission  terminates  at  that 
time. 

"The  mission  of  diplomatic  representatives  appointed  for  .special  pur- 
poses usually  terminates  with  the  performance  of  the  functions  with  which 
they  were  entrusted.  .  .  . 

"When  the  grade  of  a  diplomatic  agent  in  a  State  is  changed,  he  presents 
his  letter  of  recall  in  his  original  capacity,  which  terminated  that  mission, 
though  he  may  at  the  same  time  present  his  letter  of  credence  in  his  new  ca- 
pacity."    G.  G.  Wilson,  Int.  Law,  179. 

730 


END    OF   MISSION  [§  421 

the  same  audience  in  which  his  successor  presents  his  letter  of 
credence,  unless  for  some  sufficient  cause  he  should  be  obliged 
to  take  formal  leave  and  present  his  letter  of  recall  before  the 
presentation  of  his  successor.^  It  may  happen,  however,  that 
the  retiring  diplomatic  representative  does  not  receive  his  letter 
of  recall  in  season  to  present  it  before  his  departure.  In  such 
cases  his  successor,  or,  if  need  be  (after  receiving  special  instruc- 
tions to  that  effect),  the  charge  d'affaires  ad  interim,  when  there 
is  one,  delivers  the  letter  of  recall  in  such  manner  as  is  indicated  to 
him  by  the  minister  for  foreign  affairs.^ 

An  American  diplomatic  officer  may  resign  at  pleasure  from  the 
service  of  his  country.^ 

Upon  the  severing  of  diplomatic  relations,  a  minister  is  com- 
monly instructed  to  demand,  simultaneously,  his  passports.  He 
may  himself,  without  instructions,  demand  them,  in  case  the 
treatment  accorded  him  is  such  as  to  render  imperative,  in  his 
judgment,  the  ending  of  his  mission. "^  ^Yhether  such  demand  is 
the  means  employed  by  the  State  of  the  minister  to  announce  its 
determination  to  sever  diplomatic  relations,  or  is  the  consequence 
of  a  severance  already  effected,  or  is  merely  the  process  whereby 
the  minister  seeks  to  put  an  end  to  his  mission,  the  diplomatic 
functions  of  the  officer  are  not  believed  to  be  necessarily  termi- 
nated or  rendered  inoperative  until  the  receipt  by  him  of  the  docu- 
ments requested.^ 

1  Instruction  to  Diplomatic  Officers  of  the  United  States  (1897),  §  11. 
That  the  functions  of  a  minister  of  the  United  States  at  his  post  are  not 

terminated  by  the  appointment  of  a  successor  until  the  latter  enters  upon 
his  duties,  see  opinion  of  Mr.  Akerman,  Attornev-General,  13  Ops.  Attvs.- 
Gen.,  300,  Moore,  Dig.,  IV,  471. 

The  departure  of  Mr.  Herrick,  the  American  Ambassador  to  France, 
November,  1914,  without  presenting  his  letter  of  recall  to  the  President  of 
the  French  Republic  at  Bordeaux,  was  said  to  be  justified  on  grounds  of 
expediency  arising  from  the  exigencies  of  the  war  then  in  progress. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  12. 

^  Respecting  the  requirements  of  the  United  States  as  to  the  taking  effect 
of  the  resignation  of  a  diplomatic  officer,  see  Instructions  to  Diplomatic  Offi- 
cers of  the  United  States  (1897).  §§  272-275,  Moore,  Dig.,  IV,  470. 

^  Mr.  Marcv,  Secv.  of  State,  to  Mr.  Jackson,  Charge  at  Vienna,  April  8, 
1856,  MS.  Inst.  Aastria,  I,  117,  Moore,  Dig.,  IV,  565. 

^  Thus  it  is  believed  that  the  mission  of  Senor  Polo  de  Bernabe,  the  Spanish 
Minister  at  Washington,  who  requested  his  passports  of  Secretary  Sherman 
during  the  forenoon  of  April  20,  1898,  was  not  ended  until  the  latter,  pur- 
suant to  the  request,  delivered  those  documents  to  the  Minister.  For.  Rel. 
1898,  765. 

See,  also,  Sir  M.  de  Bunsen,  British  Ambassador  in  Vienna,  to  Sir  Edward 
Grey,  Secy,  for  Foreign  Affairs,  Sept.  1,  1914,  indicating  the  relations  of  the 
former  with  the  Austro-Hungarian  Ministry  of  Foreign  Affairs,  after  his 
reque.st  for  passports,  Aug.  13,  1914,  and  prior  to  their  delivery  on  the  follow- 
ing day.     Misc.  No.  10  (1914),  Cd.  7596. 

Mr.  Sleeper,  American  Charge  in  Caracas,  pursuant  to  instructions  and 

731 


§421]  BEGINNING  AND   END   OF  MISSION 

It  may  be  observed  that  the  communication  of  Secretary 
Lansing  to  the  German  Ambassador  on  February  3,  1917,  inform- 
ing the  latter  that  all  diplomatic  relations  between  the  United 
States  and  the  German  Empire  were  severed,  announced  the  de- 
livery also  to  the  Ambassador  of  his  passports.^ 

4 
QUESTION   OF  PERSONAL  ACCEPTABILITY 


§  422.   A  Minister  Must  Be  Personally  Acceptable.     Re- 
fusal to  Receive. 

It  is  a  general  rule  as  widely  observed  to-day  as  in  1792,  when 
it  was  enunciated  as  such  by  Mr.  Jefferson,  that  "no  nation  has 
a  right  to  keep  an  agent  within  the  limits  of  another  without  the 
consent  of  that  other."  ^  While  the  consent  to  the  reception  of 
a  diplomatic  representative  from  a  friendly  State  respecting  the 
de  jure  government  of  which  no  question  arises,  will  not  at  the 
present  time  be  withheld,^  the  State  to  which  he  is  accredited, 
may,  upon  inquiry,  withhold  assurance  of  the  personal  acceptability 

incidental  to  the  severing  of  diplomatic  relations  with  Venezuela,  requested 
his  passports  and  a  safe  conduct,  June  20,  1908.  In  response,  Dr.  Paul, 
Venezuelan  Minister  for  Foreign  Affairs,  replied  on  the  same  day:  "As  it  is 
your  honor's  Government  which  has  placed  an  end  to  your  diplomatic  func- 
tions in  this  country  and  as  the  Government  of  Venezuela  has  no  cause  for 
complaint  respecting  you  personally,  this  Government  will  preserve  you  in 
the  enjoyment  of  your  diplomatic  immunities  and  prerogatives  until  your 
embarkation  in  Puerto  Cabello  on  the  steamer  Marietta.  Not  only  for  the 
reason  above  mentioned,  that  it  is  not  the  Government  of  Venezuela  which 
bids  you  leave,  but  also  as  our  actual  situation  v/ith  the  United  States  is  not 
that  of  war,  in  which  case  it  would  be  proper  to  issue  a  safe  conduct  to  the 
diplomatic  agent  crossing  the  territory,  my  Government  does  not  consider 
it  necessary  or  fitting  to  send  it  to  you  for  your  journey  to  Puerto  Cabello, 
passing  as  you  do  through  civilized  and  cultured  towns  which  know  how 
to  respect  those  prerogatives  and  immunities."  By  this  statement  Dr.  Paiil 
disposed  of  the  request  of  Mr.  Sleeper  for  his  passports  as  well  as  a  safe 
conduct.     For.  Rel.  1908,  822  and  823. 

1  Mr.  Lansing,  Secy,  of  State,  to  Count  von  Bernstorff,  German  Am- 
bassador, Feb.  .3,  1917,  American  White  Book,  European  War,  IV,  407, 
409.  Also  Mr.  Grew,  American  Charge  d'Affaires,  to  Mr.  Lansing,  Secy,  of 
State,  April  8,  1917,  with  reference  to  the  action  of  the  Austro-Hungarian 
Ministry  for  Foreign  Affairs,  announcing  to  the  former  the  severance  of  dip- 
lomatic relations  between  the  United  States  and  Austria-Hungary,  and  giving 
to  him  simultaneously  his  passports.     Id.,  IV,  445. 

^  Communication  to  Mr.  Carmichael,  Oct.  14,  1792,  MS.  Inst.  Ministers, 
I,  201,  Moore,  Dig.,  IV,  473. 

'  Compare,  however,  the  treatment  accorded  the  American  envoys  to  France 
in  1798,  indicated  in  statement  in  Moore,  Dig.,  IV,  475-477,  and  documents 
there  cited. 

732 


THE   PRINCIPLE    INVOLVED  [§  423 

of  the  particular  individual  chosen  for  the  post.^  In  such  event, 
it  becomes  impossible  for  him  to  discharge  the  duties  of  his  office 
with  advantage  to  his  country.^  As  his  personal  acceptability 
is  indispensable  to  the  success  of  his  mission,  a  minister  should 
not  be  pressed  upon  a  State  to  which  he  is  persona  non  grata,  even 
though  it  does  not  formally  decline  to  receive  him.^  If  for  any 
reason  there  is  a  refusal  to  receive  him,  his  own  State  is  obliged 
to  acquiesce.^ 


Request  for  Recall.     Dismissal 

(1) 
§  423.   The  Principle  Involved. 

A  State  has  the  right  to  demand  the  recall  of  a  foreign  minister 
who,  for  any  reason,  has  become  persona  non  grata!"  A  request 
suggesting  such  a  fact  serves  in  itself  to  impair  his  usefulness, 
and  renders,  therefore,  acquiescence  expedient  as  well  as  im- 
perative. A  State  should  not,  and  the  United  States  does  not, 
exercise  this  right  except  for  cause,  when,  for  example,  it  has  reason 
to  believe  that  the  conduct  of  the  minister  has  been  gravely  offen- 
sive.^   While  it  spares  no  pains  to  assure  itself  of  the  connection 

1  Mr.  J.  C.  B.  Davis,  Acting  Secy,  of  State,  to  Mr.  Rublee,  Charg6  d' Af- 
faires to  Switzerland,  No.  116,  July  29,  1873,  MS.  Switzerland,  I,  303,  Moore, 
Dig.,  IV,  475. 

2  Mr.  Monroe,  Secy,  of  State,  to  Mr.  Phillips,  Oct.  26,  1816,  16  MS.  Dom. 
Let.  340,  Moore,  Dig.,  IV,  473. 

^  The  United  States  appears  to  be  no  longer  reluctant  to  ascertain  the  dis- 
position of  a  foreign  government  towards  an  individual  to  be  accredited  to  it 
as  ambassador. 

^  Clemente  Case  referred  to  by  Mr.  Adams,  Secy,  of  State,  to  Mr.  Thomp- 
son, Secy,  of  Navy,  May  20,  1819,  17  MS.  Dom.  Let.  304,  Moore,  Dig.,  IV, 
479 ;  see,  also,  Keiley  Case  in  1885,  and  correspondence  relative  thereto  in 
For.  Rel.  1885,  abstracted  in  Moore,  Dig.,  IV,  480-484. 

*  Mr.  Van  Buren,  Secy,  of  State,  to  Mr.  Poinsett,  Minister  to  Mexico,  Oct. 
16  and  17,  1829,  MS.  Inst.  Am.  States,  XIV,  141,  148,  Moore,  Dig.,  IV,  492; 
Mr.  Fish,  Secy,  of  State,  to  Mr.  Curtin,  Minister  to  Russia,  No.  110,  Nov. 
16,  1871,  respecting  the  case  of  Mr.  Catacazy,  Russian  Minister,  at  Wash- 
ington, S.  Ex.  Doc.  5,  42  Cong.,  2  Sess.,  12,  Moore,  Dig.,  IV,  502. 

Declared  Mr.  Everett,  Secy,  of  State,  to  Mr.  Marcoleta,  Nicaraguan  Min- 
ister, Dec.  30,  1852,  "the  President  can  not  consent  that  any  condition  what- 
ever should  be  attached  to  the  compliance  of  the  Nicaraguan  Government 
with  a  request  warranted  by  the  most  familiar  principles  of  the  public  law 
and  the  practice  of  civilized  states.  He  has  therefore  directed  Mr.  Kerr  to 
renew  the  request  for  your  recall  and  the  appointment  of  another  minister, 
and  in  the  meantime  I  am  instructed  to  inform  you  that  no  communication 
can  hereafter  be  received  from  you  as  the  Nicaraguan  envoy."  MS.  Notes 
to  Central  America,  I,  37,  Moore,  Dig.,  IV,  498. 

^  Numerous  instances  are  given  in  documents  contained  in  Moore,  Dig., 
IV,  484-508. 

733 


§  423]  BEGINNING   AND   END   OF   MISSION 

of  the  oflScer  with  the  conduct  deemed  reprehensible  and  charged 
against  him/  it  is  not  disposed  to  invite  diplomatic  discussion 
respecting  the  sufficiency  of  the  reasons  for  requesting  his  recall.^ 
The  United  States  asserts  that  the  reasonableness  of  such  a  request 
depends  solely  upon  the  judgment  of  the  offended  sovereign  as 
to  the  culpability  of  the  minister.^ 

On  several  occasions  the  United  States  has  dismissed  foreign 
diplomatic  agents  by  formally  declining  to  hold  further  inter- 
course with  them.^  Dismissal  has  usually  been  the  consequence 
of  failure  on  the  part  of  the  government  accrediting  the  minister 
to  relieve  the  situation  by  acceding  promptly  to  the  request  for 
recall.^  So  long  as  personal  impropriety  of  conduct  rather  than 
the  execution  of  offensive  instructions  has  been  the  cause  of  dis- 
missal, the  United  States  has  been  unwilling  to  admit  that  such 
summary  procedure  should  be  regarded  as  tending  to  weaken  the 
friendly  relations  between  the  States  concerned.^ 

^  See,  for  example,  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Willis,  Minister 
to  Hawaii,  Feb.  21,  1895,  relative  to  the  case  of  Mr.  Thurston,  Hawaiian 
Minister  at  Washington,  For.  Rel.  1895,  II,  876;  also  Mr.  Sherman,  Secy. 
of  State,  to  Mr.  Woodford,  Minister  to  Spain,  Feb.  23,  1898,  respecting  the 
case  of  Senor  de  Lome,  Spanish  Minister  at  Washington,  For.  Rel.  1898, 
1018. 

2  See  documents  in  the  Marcoleta  Case,  Moore,  Dig.,  IV,  497-499 ;  also 
in  the  Segur  Case,  id.,  IV,  500;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Curtin,  Min- 
ister to  Russia,  No.  110,  Nov.  16,  1871,  in  the  Catacazy  Case,  S.  Ex.  Doc. 
5,  42  Cong.,  2  Sess..  12,  Moore,  Dig.,  IV,  502. 

^  Mr.  Phelps,  Minister  to  Great  Britain,  to  Lord  Salisbury,  Secy,  for 
Foreign  Affairs,  Dec.  4,  1888,  For.  Rel.  1888,  II,  1705-1706,  Moore,  Dig., 
IV,  544 ;  Mr  .Bayard,  Secy,  of  State,  to  Mr.  Phelps,  Minister  to  Great  Britain, 
No.  1054,  Jan.  30,  1889,  citing  Calvo,  III,  213,  4  ed.,  1888,  For.  Rel.  1888, 
II,  1718,  Moore,  Dig.,  IV,  539,  546. 

*  "Papers  relating  to  the  case  of  Lord  Sackville",  For.  Rel.  1888,  II,  Supp., 
A,  1667-1729,  Moore,  Dig.,  IV,  536-548.  See,  also,  earlier  instances  given 
in  Moore,  Dig.,  IV,  508-536. 

5  This  was  not  true,  however,  in  the  case  of  Mr.  F.  J.  Jackson,  British  Min- 
ister at  Washington,  whose  language  in  a  communication  to  Mr.  Smith, 
Secy,  of  State,  Nov.  4,  1809,  contained  a  gross  in.sinuation  that  the  Gov- 
ernment of  the  United  States  posses.sed  a  knowledge  that  the  instructions  of 
the  Minister's  predecessor  did  not  authorize  an  arrangement  concluded  by 
him  with  the  United  States,  after  Mr.  Jackson  had  been  distinctly  and  ex- 
plicitly advised  that  the  Government  did  not  possess  such  knowledge.  Am. 
State  Pap.,  For.  Rel.,  Ill,  317-319,  Moore,  Dig.,  IV,  512. 

« Mr.  Bayard,  Secv.  of  State,  to  Mr.  Phelp>,  Minister  to  Great  Britain, 
No.  1054,  Jan.  30,  1889,  For.  Rel.  1888,  II,  1718,  Moore,  Dig.,  IV,  539.  In 
this  despatch,  Mr.  Bayard  distinguished  the  case  in  point,  that  of  Lord  Sack- 
ville, from  Sir  Henry  Bulwer's  sudden  dismissal  from  the  court  of  Madrid 
in  1848,  declaring  that  "The  objection  of  Spain  was  to  the  action  of  Lord 
Palmerston  and  presumptively  of  the  ministry  of  Great  Britain,  of  which 
Sir  Henry  Bulwer  was  but  the  channel  of  communication,  and  throughout  the 
entire  transaction  Sir  Henry  Bulwer  received  the  entire  approval  of  his  lord- 
ship. The  offense  of  Lord  Sackville  consisted  in  personal  misconduct  wholly 
inconsistent  with  his  official  duty  and  relations,  of  which  no  suggestion  of 
approval  by  his  Government  has  yet  been  intimated." 

See,  also.  Case  of  Mr.  de  Reus,  Minister  Resident  of  the  Netherlands  at 

734 


CASES   IN    THE   UNITED    STATES  [§  424 

(2) 

§  424.    Cases  in  the  United  States. 

The  conduct  of  foreign  ministers  deemed  by  the  United  States 
to  justify  a  request  for  recall  or  dismissal  is  worthy  of  observation. 
M.  Genet,  the  French  Minister,  whose  recall  was  requested  in 
1793,  sought  to  arouse  hostility'  against  England,  violated  the 
neutrality  of  the  United  States,  "expressed  contempt  for  the  opin- 
ions of  the  President,  and  questioned  his  authority."  ^  The  ]\Iar- 
quis  of  Yrujo,  the  Spanish  Minister,  whose  recall  was  sought  in 
1805,  was  charged  with  an  attempt  to  tamper  with  the  press.^ 
Mr.  F.  J.  Jackson,  the  British  ]Minister,  dismissed  in  1809,  grossly 
insinuated,  according  to  the  Secretary  of  State,  that  the  Govern- 
ment of  the  United  States  was  guilty  of  bad  faith.^  ]\I.  Poussin, 
the  French  Minister,  was  dismissed  in  1849,  by  reason  of  the  tone 
of  his  communications,  which  were  regarded  as  disrespectful  to- 
wards the  Government.^  Mr.  jNIarcoleta,  the  Nicaraguan  Minis- 
ter, with  whom  Secretary  Everett  in  1852  declined  to  hold  further 
official  communication,  was  accused  of  violating  the  confidence 
with  which  a  certain  proposition  with  reference  to  Costa  Rica  and 
Nicaragua  was  shown  to  him,  and  of  making  ostentatiously  offen- 
sive efforts  to  defeat  negotiations  relative  to  the  same  matter.^ 
His  alleged  activity  in  violating  the  neutrality  laws  of  the  United 
States  led  to  the  dismissal,  in  1856,  of  Mr.  Crampton,  the  British 
Minister.^  Similar  reasons,  which  were  not,  however,  stated, 
caused  Secretary  Seward  to  request,  in  1863,  the  recall  of  Mr. 
Segur,  the  Salvadorean  ]\Iinister.^  The  complamt  against  Mr. 
Catacazy,  the  Russian  ]\Iinister  whose  recall  was  requested  in 
1871,  was  due  to  his  violent  abuse  and  vilification  of  the  owners 
of  a  claim  preferred  against  Russia,  his  "  publications  abusive  of 

Caracas  in  1908,  For.  Rel.  1909,  630-631;  also  Case  of  the  Belgian  and 
French  Ministers  at  Caracas  in  1895,  mentioned  in  Moore,  Dig.,  IV,  548- 
549. 

Non-interference  in  Politics,  infra,  §  452. 

1  Moore,  Arbitrations,  4404-4412;   Moore,  Dig.,  IV,  485-487. 

2  Moore,  Dig..  IV,  508-511,  and  documents  there  cited. 

3  Am.  State  Pap.,  For.  Rel.,  Ill,  299-323,  especially  Mr.  Smith,  Secy,  of 
State,  to  Mr.  Jackson,  Nov.  8,  1809,  id.,  318.  See,  also,  Moore,  Dig.,  IV, 
511-530,  and  documents  there  cited. 

*  Statement  in  Moore,  Dig.,  IV,  530-532,  based  on  "MSS.  Dept.  of  State." 

*  Mr.  Everett,  Secv.  of  State,  to  Mr.  Kerr,  Minister  to  Central  America, 
No.  19,  Jan.  5.  1853,  MS.  Inst.  Am.  St.,  XV,  152,  Moore,  Dig.,  IV,  498. 

«  Brit,  and  For.  St.  Pap.,  XLVII,  358-374,  Moore,  Dig.,  IV,  533-535.  See, 
also,  opinion  of  Mr.  Cushing.  Attv.-Gen.,  Aug.  9,  1855,  7  Ops.  Attvs.-Gen., 
367,  388,  Moore,  Dig.,  IV,  535. 

'  Moore,  Dig.,  IV,  500,  and  documents  there  cited. 

735 


§  424]  BEGINNING  AND   END   OF  MISSION 

the  President  ",  and  his  efforts  to  "  obstruct,  embarrass,  and  de- 
feat "  negotiations  between  the  United  States  and  Great  Britain 
for  the  adjustment  of  their  mutual  differences.^ 

Lord  Sackville,  the  British  Minister,  was  dismissed  in  1888, 
because  of  what  President  Cleveland  described  as  "  unpardonable 
conduct  in  his  interference  by  advice  and  counsel  with  the  suffrages 
of  American  citizens  in  the  very  crisis  of  the  presidential  election 
then  near  at  hand,  and  also  in  his  subsequent  public  declarations 
to  justify  his  actions,  superadding  impugnment  of  the  Executive 
and  Senate."  -  The  recall  of  ]Mr.  Thurston,  the  Hawaiian  Minister, 
in  1895,  was  due  to  his  admitted  activity  in  furnishing  the  press 
with  matter  criticizing  the  policy  of  the  United  States  in  regard 
to  Hawaii.^  It  was  proof  of  his  authorship  of  a  private  letter 
published  in  a  newspaper  of  New  York,  and  derogatory  to  the 
character  of  President  INIcKinley,  that  led  to  the  request  for  the 
recall  and  resulted  in  the  resignation  of  Seiior  de  Lome,  the  Spanish 
Minister,  in  1898.* 

In  1915,  Mr.  Dumba,  the  Austro-Hungarian  Ambassador,  ad- 
mitted that  he  had  proposed  to  his  Government  plans  to  instigate 
strikes  in  American  manufacturing  plants  engaged  in  the  produc- 
tion of  munitions  of  war.  This  proposal,  embodied  in  a  letter, 
had  been  entrusted  by  the  Ambassador  to  an  American  citizen, 
traveling  to  Europe  under  an  American  passport.  On  September 
8,  1915,  Secretary  Lansing  instructed  the  American  Ambassador 
at  Vienna  to  inform  the  Austro-Hungarian  Government  that  by 
reason  of  the  admitted  purpose  and  intent  of  Mr.  Dumba  to  con- 
spire to  cripple  the  legitimate  industries  of  the  people  of  the  United 
States  and  to  interrupt  their  legitimate  trade,  and  by  reason  of 
the  flagrant  violation  of  international  propriety  in  employing  an 
American  citizen  protected  by  an  American  passport  as  a  secret 
bearer  of  official  despatches  through  the  lines  of  the  enemy  of 
Austria-Hungary,  the  President  deemed  ]\Ir.  Dumba  no  longer 
acceptable  to  the  Government  of  the  United  States  as  the 
Ambassador  of  His  Imperial  ^Majesty,  and  that  that  Government 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Curtin,  Minister  to  Russia,  Sept.  5, 1871, 
Senate  Ex.  Doc.  No.  5,  42  Cong.,  2  Sess.,  5;  Same  to  Same,  Nov.  16,  1871,  id., 
12,  17-18.  See,  also,  statement  of  the  case  in  Moore,  Dig.,  IV,  501-503,  and 
documents  cited. 

2  President  Cleveland,  Annual  Message,  Dec.  3,  1888,  For.  Rel.  1888,  I, 
si,  Moore,  Dig.,  IV,  536,  537. 

^  Mr.  Gre.sham,  Secv.  of  State,  to  Mr.  Willis,  Minister  to  Hawaii,  Feb. 
21,  1895,  For.  Rel.  1895,  II,  876,  Moore,  Dig.,  IV,  503. 

*  Mr.  Sherman,  Secv.  of  State,  to  Mr.  Woodford,  Minister  to  Spain,  Feb. 
23,  1898,  For.  Rel.  1898,  1018.  See,  also,  Moore,  Dig.,  IV,  507-508,  and  docu- 
ments there  cited. 

736 


AMERICAN    NATIONALITY    AS    OBSTACLE         [§425 

had  no  alternative  but  to  request  INIr.   Dumba's  recall.^     The 
Austro-Hungarian  Government  acquiesced. 

On  December  4,  1915,  the  German  Government  was  requested 
to  withdraw  immediately  from  their  official  connection  with  its 
embassy  at  Washington,  Captain  Boy-Ed,  Naval  Attache,  and 
Captain  von  Papen,  INIilitary  Attache,  because  there  had  come 
to  the  knowledge  of  the  Government  of  the  United  States  facts 
and  circumstances  as  to  their  connection  "with  the  illegal  and 
questionable  acts  of  certain  persons  within  the  United  States."  ^ 
On  December  10,  the  German  Embassy  announced  the  recall  of 
both  officers.^ 


§  425.   American  Nationality  as  Obstacle  to  Reception. 

The  right  of  any  government  to  decline  to  receive  one  of  its 
own  citizens  as  the  representative  of  another  government  is  gen- 
erally recognized,  and  has  been  asserted  on  several  occasions  by 
the  Government  of  the  United  States.  While  insisting  upon  the 
right  in  some  instances,  it  has  been  waived  without  prejudice  in 
others.^  Thus  in  1880,  Senor  Comacho,  a  naturalized  American 
citizen,  born  in  Venezuela,  was  received  by  the  United  States 
as  Charge  d'Affaires  of  Venezuela.^     This  case  must  be  deemed 

1  Communication  of  Mr.  Lansing,  Secy,  of  State,  to  Mr.  Penfield,  Am- 
bassador to  Austria-Hungary,  Sept.  8,  1915,  American  White  Book,  Eu- 
ropean War,  III,  321. 

See  documents  in  Moore,  Dig.,  IV,  488-497,  in  relation  to  early  cases  where 
the  recall  of  American  diplomatic  officers  was  requested. 

2  Mr.  Lansing,  Secy,  of  State,  to  the  German  Ambassador,  Dec.  4,  1915, 
American  White  Book,  European  War,  III,  325. 

'  See  Mr.  Lansing,  Secy,  of  State,  to  the  German  Ambassador,  Dec.  10, 1915, 
complaining  of  the  failure  of  the  German  Government  to  comply  promptly 
with  the  request  made  by  the  United  States,  id.,  325;  also  comrnunication 
of  same  date,  from  the  German  Ambassador,  announcing  compliance,  id., 
326. 

Concerning  the  activities  of  these  oflBcers  see  House  Report,  Comrnittee  on 
For.  Rel.,  accompanying  text  of  proposed  declaration  of  war,  April,  1917, 
Cong.  Rec,  LV,  No.  1,  319,  320-321,  J.  B.  Scott,  Survey  of  Int.  Relations 
between  the  United  States  and  Germany,  1917,  505-509. 

^  The  language  of  the  text  is  that  of  Mr.  Adee,  Acting  Secy,  of  State,  to 
Mr.  Russell,  Minister  to  Venezuela,  June  28,  1907,  citing  Moore,  Dig.,  IV, 
549-553,  For.  Rel.  1907,  II,  1092-1093.  See,  also,  Mr.  Hav,  Secy,  of  State, 
to  the  President,  Jan.  22,  1900,  S.  Doc.  113,  56  Cong.,  1  Sess..  Moore,  Dig., 
IV,  553 ;  Mr.  Fish,  Secv.  of  State,  to  Mr.  Schieffelin,  June  6,  1874,  MS.  Notes 
to  Liberia,  I,  21,  Moore,  Dig.,  IV,  551. 

.\ccording  to  an  announcement  of  Mr.  Bacon,  Acting  Secy,  of  State,  to  the 
Diplomatic  Corps  at  Washington,  Jan.  27,  1906,  it  was  said  that  future  diplo- 
matic lists  would  contain  the  names  of  only  such  officers  and  attaches  of  for- 
eign missions  in  the  United  States  as  were  not  citizens  thereof. 

5  Mr.  Evarts,  Secy,  of  State,  to  Mr.  Baker,  Minister  to  Venezuela,  April 
27,  1880,  MS.  Inst.  Venezuela,  III,  99,  Moore,  Dig.,  IV,  552;  Same  to  Mr. 

737 


§425]  BEGINNING   AND    END    OF   MISSION 

exceptional,  however,  and  limited  as  a  precedent  to  the  special 
circumstances  connected  with  it.  The  Department  of  State  is  not 
averse  to  having  dealings  with  American  citizens  appointed  by 
foreign  States  as  plenipotentiaries  for  special  service  such  as  the 
negotiation  of  treaties.^ 

Comacho,  April  20,  1880,  MS.  Notes  to  Venezuela,  I,  197,  Moore,  Dig.,  IV, 
552.  See,  also,  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Rassell,  Minister  to 
Venezuela,  June  28,  1907,  For.  Rel.  1907,  II,  1092,  1093,  in  which  attention 
was  called  to  the  fact  that  notwithstanding  Mr.  Comacho's  American  natu- 
ralization, he  was  still  regarded  by  Venezuela,  in  virtue  of  its  laws,  as  a  citizen 
of  that  State. 

1  Mr.  Anson  Burlingame,  an  American  citizen,  as  envoy  of  China  for  the 
purpose  of  negotiating  a  treaty,  was  received  by  the  President  as  a  diplo- 
matic representative  in  1868,  and  with  certain  Chinese  colleagues  concluded  a 
treaty  with  the  United  States  the  same  year.  Dip.  Cor.  1868,  I,  461-495, 
601-604,  Moore,  Dig.,  IV,  550-551. 

In  1902,  Mr.  Herbert  W.  Bowen,  American  Minister  to  Venezuela,  was  per- 
mitted by  the  United  States  to  act  as  the  representative  of  Venezuela  in 
entering  into  negotiations  for  the  adjustment  of  difficulties  arising  between 
that  country  and  numerous  other  States,  including  the  United  States.  Agree- 
ments with  the  United  States  concluded  Feb.  7,  1903,  and  May  7,  1903,  were 
signed  at  Washington  by  Mr.  Bowen  in  behalf  of  Venezuela.  Malloy's 
Treaties,  II,  1870;  also  For.  Rel.  1903,  788-805. 


738 


TITLE  D 

THE  RIGHTS  AND  DUTIES  OF  MINISTERS 

1 
RIGHT  TO   PROTECTION 


§  426.    Of  Person  and  Reputation. 

Respect  for  the  State  which  he  represents  demands  that  a  minis- 
ter shall  at  all  times  enjoy  the  right  to  fulfill  his  diplomatic  func- 
tion without  hindrance  or  molestation.  To  that  end  it  is  essential 
that  his  person  be  afforded  complete  protection,^  Accordingly, 
the  statutory  law  of  the  United  States  subjects  to  grave  penalties 
any  one  who  in  any  manner  "offers  violence  to  the  person  of 
a  public  minister,  in  violation   of  the  law  of  nations."  ^      Pro- 

1  Declared  McKean,  C.  J.,  in  Respublica  v.  De  Longchamps :  "The  per- 
son of  a  public  minister  is  sacred  and  inviolable.  Whoever  offers  anj^  violence 
to  him,  not  only  affronts  the  sovereign  he  represents,  but  also  hurts  the  com- 
mon safetv  and  well-being  of  nations;  he  is  guiltv  of  a  crime  against  the 
whole  world."     1  Dall.  Ill,  116,  Moore,  Dig.,  IV,  622. 

See,  also,  President  Fillmore,  second  Annual  Message,  Dec.  2,  1851,  Rich- 
ardson's Messages,  V,  118;  Ministers  Recalled  or  Not  Received,  infra,  §  439. 
See  Charles  Noble  Gregory,  "  The  Privileges  of  Ambassadors  and  Foreign  Min- 
isters", Michigan  Law  Rev.,  Ill,   173. 

2  Rev.  Stat.  '§  4062.  On  Jan.  6,  1915,  one  E.  R.  S.  was  indicted  at  Tacoma, 
Washington,  for  a  violation  of  this  statute,  for  having  assaulted  and  offered 
violence  to  the  person  of  Count  von  Bernstorff,  the  Imperial  German  Am- 
bassador to  the  United  States.  To  this  indictment  the  defendant  pleaded 
guilty,  Jan.  15,  1915,  and  was  sentenced  without  further  proceedings.  There 
was  no  written  or  published  opinion  in  the  case.  For  the  facts  concerning 
it,  the  author  is  indebted  to  Hon.  Edward  E.  Cushman,  U.  S.  District  Judge, 
Western  District  of  Washington,  before  whom  the  case  arose.  See,  also, 
United  States  v.  Ortega,  11  Wheat.  467. 

See  Arts.  la  and  lb  of  final  protocol  of  agreement  between  China  and  the 
Powers,  Sept.  7,  1901,  re.specting  the  appointment  of  Prince  Tschun  as  Am- 
bassador to  convey  to  the  Emperor  of  Germany  an  expression  of  regret  for  the 
assassination  of  Baron  von  Ketteler,  the  German  Minister  to  China,  in  1900, 
and  the  erection  on  the  spot  of  the  assassination  of  a  commemorative  monu- 
ment worthy  of  the  rank  of  the  deceased.  For.  Rel.  1901,  Append.  313,  Moore, 
Dig.,  V,  518.  Respecting  the  expiatory  mission  of  Prince  Tschun,  see  For. 
Rel.  1901,  187. 

See  For.  Rel.  1912,  268-276,  concerning  an  assault  upon  Mr.  Gibson,  Ameri- 
can Charge  d'Affaires  at  Habana,  Aug.  27,  1912,  and  the  prosecution  and 
conviction  of  the  offender. 

739 


§426]       THE   RIGHTS  AND   DUTIES   OF  MINISTERS 

ceedings  against  the  aggressor  must  be  instituted  on  complaint 
under  oath  of  the  person  assaulted,  or  of  a  witness  to  the 
assault.'^ 

A  foreign  minister  is  entitled  to  the  same  degree  of  protection 
for  his  reputation  as  for  his  person,  and  for  like  reasons.  Hence 
it  behooves  the  State  to  which  he  is  accredited  to  shield  him  from 
insult  as  well  as  personal  violence,  and  to  prosecute  with  vigor 
him  who  attempts  to  defame  him.^ 

According  to  the  existing  law,  whoever  within  the  jurisdiction 
of  the  United  States  falsely  assumes  or  pretends  to  be  a  diplomatic 
or  consular  (or  other)  official  of  a  foreign  government,  duly  ac- 
credited as  such  to  the  Government  of  the  United  States,  with 
intent  to  defraud  such  Government  or  any  person,  and  takes  upon 
himself  to  act  as  such,  or  in  such  pretended  character  demands  or 
obtains,  or  attempts  to  obtain  from  any  person  or  from  such  for- 
eign government  or  from  any  officer  thereof,  any  money,  paper, 
document  or  other  thing  of  value,  subjects  himself  to  fine  or 
imprisonment,  or  both.^ 


§  427.    Of  Domicile  and  Property. 

All  the  reasons  which  establish  the  independence  and  inviolability 
of  the  person  of  a  minister,  apply  likewise  to  secure  the  immunities 
of  his  house.  It  is  to  be  defended  from  all  outrage ;  it  is  under 
a  peculiar  protection  of  the  laws ;  to  invade  its  freedom  is  a  crime 
against  the  State  and  all  other  nations.^ 

An  attack  upon  the  house  of  a  minister  is  equivalent  to  an  attack 
upon  his  person.^  Prior  to  or  simultaneously  with  the  outbreak 
of  war,  when  the  public  mind  is  inflamed  against  a  foreign  State 
which  is  generally  regarded  as  a  probable  enemy,  it  becomes  neces- 
sary to  take  special  precautions  to  guard  the  legation  or  embassy 

1  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Preston,  Haitian  Minister, 
July  10,  1883,  MS.  Notes  to  Haiti,  I,  301,  Moore,  Dig.,  IV,  825. 

2  Opinion  of  Mr.  Bradford,  Atty.-Gen.,  1  Ops.  Attvs.-Gen.,  52,  Moore, 
Dig.,  IV,  629;  opinion  of  Mr.  Lee,  Atty.-Gen.,  1  Ops.  Attys.-Gen.,  71,  Moore, 
Dig.,  IV,  630;  Count  Vinci,  Italian  Charge,  to  Mr.  Hay,  Secy,  of  State,  June 
20,  1899,  For.  Rel.  1899,  413,  Moore,  Dig.,  IV,  630. 

3  Act  of  June  15,  1917,  Chap.  30,  Title  VIII,  §  2,  40  Stat.  226. 

^  The  language  of  the  paragraph  in  the  text  is  that  of  McKean,  C.  J.,  in 
Respublica  v.  De  Longchamps,  1  Dall.  Ill,  117. 

5  United  States  v.  Hand,  2  Wash.  C.  C.  435,  Moore,  Dig.,  IV,  627,  respect- 
ing an  attack  upon  the  house  of  the  Russian  Charge  in  Philadelphia  in  1810, 
and  the  indictment  of  a  participant  for  assault  upon  the  Charge.  See,  also, 
Wr.  xMadiso.1,  Secy,  of  State,  to  Governor  McKean,  May  11,  1802,  14  MS. 
Dom.  Let.  18,  Moore,  Dig.,  IV,  627. 

740 


IN   GENERAL  [§  428 

of  that  State  from  outrage.     If  it  is  subjected  to  violence,  the  duty 
of  the  territorial  sovereign  to  make  apology  seems  obvious.^ 


2 
RIGHT   OF   OFFICIAL   COMMUNICATION 

a 

§  428.   In  General. 

For  the  proper  discharge  of  his  duties  and  hence  as  a  necessary 
incident  of  the  right  of  legation,  a  diplomatic  officer  is  entitled 
to  correspond  freely  with  his  own  government  or  with  officials 
thereof  in  the  State  to  which  he  is  accredited.^  To  that  end  he 
may  avail  himself  of  the  usual  modes  of  communication,  such  as 
the  telegraph,^  or  the  mails  or  personal  messengers.^  Howso- 
ever transmitted,  his  communications  when  so  desired  may  be 
in  cipher.^  In  time  of  war  a  belligerent  State  may,  however, 
not  unreasonably  restrict  the  use  of  cipher  by  a  foreign  diplo- 
matic officer  to  messages  passing  between  his  mission  and  his 
government.^ 

The  Department  of  State  has  asserted  that  th'ie  right  of  corre- 
spondence should  be  available  to  an  American  diplomatic  officer  at 
his  post  in  a  State  engaged  in  war  to  which  the  United  States  is 
not  a  party,  and  that,  whether  he  is  in  a  besieged  place, ^  or  in  one 

^  Sir  E.  Goschen,  British  Ambassador  in  Berlin,  to  Sir  Edward  Grey, 
Secretary  of  State  for  Foreign  Affairs,  Aug.  8,  1914,  with  respect  to  the  mob 
violence  directed  against  the  British  Embassy  at  Berlin,  Aug.  4,  1914,  and 
indicating  the  assurances  of  regret  expressed  by  Herr  von  Jagow,  German 
Secretary  for  Foreign  Affairs,  at  what  had  occurred.  Misc.  No.  8  (1914), 
Cd.  7445. 

2  Mr.  Fish,  Secy,  of  State,  to  Baron  Gerolt,  Nov.  21,  1870,  For.  Rel.  1870, 
196,  Moore,  Dig.,  IV,  699;  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Peralta,  Sal- 
vadorean Minister,  April  25,  1885,  MS.  Notes  to  Costa  Rica,  II,  34,  Moore, 
Dig.,  IV,  701 ;  Mr.  Hay,  Secy,  of  State,  to  Mr.  Goodnow,  Consul  at  Shang- 
hai, telegram,  Aug.  1,  1900,  For.  Rel.  1900,  260,  Moore,  Dig.,  IV,  703. 

3  Mr.  Hay,  Secy,  of  State,  to  Mr.  Merry,  Minister  to  Nicaragua,  May  6, 
1899,  For.  Rel.  1899,  579,  Moore,  Dig.,  IV,  703. 

"•  Declared  Mr.  Seward,  Secy,  of  State,  in  a  communication  to  Mr.  Burton, 
Minister  to  Colombia,  No.  1,  May  29,  1861 :  "The  right  to  send  despatches 
of  a  minister,  secured  by  the  law  of  nations,  certainly  involves  the  right  to 
designate  the  messenger  and  the  inviolability  of  his  person  when  executing  the 
commission."     MS.  Inst.  Colombia,  XVI,  1,  Moore,  Dig.,  IV.,  695. 

5  Mr.  Fish,  Secy,  of  State,  to  Mr.  Bancroft,  Minister  to  Prussia,  No.  264, 
Nov.  11,  1870,  For.  Rel.  1870,  195,  Moore,  Dig.,  IV,  697. 

^  Mr.  W.  H.  Page,  American  Ambassador  to  Great  Britain,  to  Secy,  of 
State,  telegram,  Aug.  27,  1914,  American  White  Book,  European  War,  II, 
72 ;  Same  to  Same,  Dec.  29,  1914,  id.,  II,  86 ;  Acting  Secy,  of  State,  to  Mr. 
Reinsch,  American  Minister  to  China,  telegram,  Jan.  2,  1915,  id.,  II,  86. 

"  See  discussion  between  the  United  States  and  the  North  German  Union 

741 


§  428]       THE   RIGHTS  AND   DUTIES   OF  MINISTERS 

rendered  generally  inaccessible  by  blockade.^  A  minister  should, 
however,  under  such  circumstances  have  unfailing  regard  for  the 
safety  of  the  State  of  his  residence.^  He  should  be  scrupulous  to  as- 
certain that  in  the  exercise  of  his  rights,  he  is  not  also  unwittingly 
opening  a  forbidden  and  unlawful  channel  of  communication  to 
outsiders.^  Persistent  abuse  of  his  privileges  would  justify  their 
curtailment.^ 

Incidental  to  the  right  of  official  communication  between  a  State 
and  its  representatives  abroad,  is  the  right  to  demand  the  invio- 
lability of  official  correspondence.^  The  United  States,  when  it- 
self a  belligerent  as  well  as  when  a  neutral,  has  steadfastly  urged 
recognition  of  this  principle.^  In  November,  1914,  the  Depart- 
ment of  State  initiated  a  proposal  for  the  establishment  of  uniform 
regulations  for  the  transmission  of  correspondence  of  American 
diplomatic  and  consular  officers  in  belligerent  territory.  The 
plan,  which  proved  acceptable  to  Austria-Hungary  as  well  as  to 
certain  other  Powers  then  at  war,  provided  in  part  that  official 
correspondence  under  seal  of  office  between  the  Department  and 
such  officers  should  not  be  molested.'^ 

respecting  the  correspondence  of  Mr.  Washburne,  American  Minister  at  Paris, 
during  the  siege  of  that  city  in  1870,  Moore,  Dig.,  IV,  696-699.  See,  also, 
For.  Rel.  1900,  259-264,  respecting  communication  with  the  American  Min- 
ister at  Peking  during  the  siege  of  the  legations  in  that  city  in  1900,  Moore, 
Dig.,  IV,  703-704. 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Kirk,  No.  3,  June  17,  1869,  MS.  Inst. 
Argentine  Republic,  XV,  317,  Moore,  Dig.,  IV,  696. 

2  Mr.  Seward,  Secy,  of  State,  to  Mr.  Burton,  Minister  to  Colombia,  No.  1, 
May  29,  1861,  MS.  Inst.  Colombia,  XVI,  1,  Moore,  Dig.,  IV,  695. 

'  See,  for  example.  Count  Bismarck  to  Mr.  Washburne,  American  Min- 
ister at  Paris,  Jan.  28,  1871,  For.  Rel.  1871,  136,  Moore,  Dig.,  IV,  699. 

''  This  was  virtually  admitted  by  Mr.  Fish,  Secy,  of  State,  in  a  communi- 
cation to  Mr.  Bancroft,  Minister  to  Prussia,  No.  264,  Nov.  11,  1870,  For. 
Rel.  1870,  195,  Moore,  Dig.,  IV,  697-698. 

With  respect  to  the  impropriety  of  conduct  on  the  part  of  the  Swedish 
Legation  at  Buenos  Aires  in  sending,  in  1917,  as  its  own  official  messages 
addressed  to  its  own  Government,  secret  despatches  of  the  German  Charg6 
d'Aflfaires  at  Buenos  Aires  for  transmission  to  his  Government,  and  pertain- 
ing to  the  ruthless  policy  of  Germany  as  a  belligerent  with  respect  to  sub- 
marine warfare,  see  David  Jayne  Hill,  "The  Luxburg  Secret  Correspondence  ", 
Am.  J.,  XII,  135. 

^  Mr.  Seward,  Secy,  of  State,  to  Lord  Lyons,  British  Minister,  April  5, 
1862,  Dip.  Cor.  1862,  258,  2.59,  Moore,  Dig^,  IV,  712 ;  Mr.  Qvincv,  Acting 
Secy,  of  State,  to  Mr.  Thompson,  No.  56,  March  25,  1893,  For.  Rel.  1893, 
623 ;  Mr.  Gresham,  Secv.  of  State,  to  Mr.  Thompson,  Minister  to  Turkey, 
No.  54,  March  17,  1893,  id.,  620,  Moore,  Dig.,  IV,  712. 

6  Instructions  issued  by  the  Secy,  of  the  Navy,  Aug.  18,  1862,  to  Ameri- 
can Naval  Officers,  Moore,  Dig.,  IV,  712.  These  instructions  were  attached 
as  Appendix  I  to  a  communication  of  Mr.  Lansing,  Secy,  of  State,  to  Mr. 
W.  H.  Page,  Ambassador  to  Great  Britain,  Oct.  21,  1915,  American  White 
Book,  European  War,  III,  25,  38. 

'  Concerning  the  details  of  the  arrangement,  see  Consuls,  Correspondence 
with  Governmental  Agencies  of  the  Consul's  State,  infra,  §  468. 

742 


DISPLAY   OF   NATIONAL   FLAG  [§  430 


§  429.   Couriers  and  Bearers  of  Despatches. 

A  government,  or  its  ministers  abroad,  may  employ  couriers  or 
bearers  of  despatches  for  the  transmission  of  oflficial  correspon<^l- 
ence.^  American  diplomatic  representatives  are  permitted  to  do 
so  in  case  the  mails  are  obstructed,  or  by  reason  of  other  urgent 
necessity.^  Individuals  so  employed  are  declared  to  be  privileged 
persons,  as  far  as  it  is  necessary  for  their  particular  service,  whether 
in  the  State  to  which  the  diplomatic  representative  is  accredited, 
or  in  the  territories  of  a  third  State  with  which  the  government 
they  serve  is  at  peace.^  They  are  immune  from  arrest.^  Under 
normal  circumstances  the  right  of  a  diplomatic  officer  to  choose 
a  person  to  act  as  a  bearer  of  despatches  is  doubtless  unlimited.^ 
In  time  of  war,  however,  a  diplomatic  officer  representing  a  bel- 
ligerent power  in  a  neutral  State  would  subject  himself  to  grave 
criticism  should  he  employ  as  a  secret  bearer  of  official  despatches 
through  the  lines  of  the  enemy,  a  national  of  that  State  and  one 
protected  by  its  passport.^ 

3 

MISCELLANEOUS  PRIVILEGES 

a 

§  430.   Display  of  National  Flag. 

The  right  of  a  public  minister  to  display  the  flag  of  his  country 
from  his  official  residence  would  probably  not  be  challenged  at 

1  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Thompson,  telegram,  April  1,  1893, 
For.  Rel.  1893,  624,  Moore,  Dig.,  IV,  713 ;  Mr.  Bryan,  Secy,  of  State,  to  Mr. 
Penfield,  Ambassador  to  Austria-Hungary,  Nov.  25,  1914,  American  White 
Book,  European  War,  II,  67. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  132. 
Also  id.,  §§  130  and  131. 

'  Id.,  §  57.  §  133  declares  that :  "When  a  bearer  of  despatches  is  employed 
as  above,  a  special  passport  may  be  given  to  him  by  the  diplomatic  represen- 
tative, setting  forth  his  name  and  the  duty  he  is  to  perform.  Such  a  pass- 
port is  to  be  furnished  without  charge  and  is  only  good  for  the  journey  for 
which  it  is  issued." 

"  Dana's  Wheaton,  §  243,  Moore,  Dig.,  IV,  713 ;  Mr.  Fish,  Secy,  of  State, 
to  Mr.  Brent,  Oct.  19,  1870,  citing  Calvo,  1868  ed.,  paragraph  240,  page 
350,  For.  Rel.  1870,  519,  Moore,  Dig.,  IV,  714 ;  Oppenheim,  2  ed.  I,  §  405. 

5  Mr.  Fish,  Secy,  of  State,  to  Mr.  Freyre,  Dec.  17, 1870,  MS.  Motes  to  Peru, 
I,  411,  in  which  it  was  said,  "No  appointment  in  a  toreign  country  of  a  per- 
son as  courier  under  arrest,  or  liable  to  arrest,  would  be  approved  by  this 
Department,  especially  if  such  appointment  was  in  any  way  intended  to 
screen  the  appointee  from  his  liabilities  under  the  municipal  law."  Moore, 
Dig.,  IV,  715,  716. 

*  Mr.  Lansing,  Secy,  of  State,  to  Mr.  Penfield,  American  Ambassador  to 

743 


§430]      THE   RIGHTS   AND   DUTIES   OP   MINISTERS 

the  present  time  by  any  enlightened  State.^  It  has  been  declared 
by  the  Department  of  State  that  it  is  in  most  capitals  customary 
to  place  an  official  shield  above  the  principal  entrance  of  the  dip- 
lomatic representative's  residence,  or  the  offices  of  the  mission, 
when  these  are  separate  from  his  residence,  with  a  short  flagstaff 
set  above  the  shield,  on  which  to  display  the  flag  of  the  United 
States  on  occasions  of  special  ceremony.  It  is  stated,  however, 
that  a  mission  "is  not  under  the  same  necessity  of  displaying  a 
coat  of  arms  and  raising  a  flag  as  a  consulate."  ^ 

No  local  law  purports  to  deter  a  foreign  diplomatic  officer  from 
displaying  at  will  the  flag  of  his  country  in  the  territory  of  the 
United  States.^ 

b 
§  431.   Liberty  of  Worship. 

That  a  foreign  minister  may  within  the  precincts  of  his  legation 
assert  the  right  of  worship  for  the  benefit  of  himself,  his  staff  and 
his  fellow  countrymen,  irrespective  of  the  contrasting  views  of 
the  religious  establishment  of  the  State  to  which  he  is  accredited, 
appears  to  be  accepted  doctrine."*  It  is  important,  however,  that 
religious  services  should  be  conducted  in  such  manner  as  not  to 
offend  the  sensibilities  of  the  local  adherents  of  any  differing  per- 
suasion.^ 

In  a  country  such  as  the  United  States,  where  freedom  of 
worship  is  safeguarded  by  the  Constitution,  the  exercise  of  the  right 
accorded  a  foreign  diplomatic  officer  by  the  law  of  nations 
meets  with  no  obstacle.® 

Austria-Hungary,  Sept.  8,  1915,  relative  to  the  case  of  Mr.  Dumba,  Austro- 
Hungarian  Ambassador  at  Washington,  whose  recall  was  requested  by  the 
United  States,  American  White  Book,  European  War,  III,  321. 

1  Display  of  Foreign  Flags,  supra,  §  212. 

^  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  64. 

It  seems  important  to  note  that  the  communication  of  Mr.  Knox,  Secv.  of 
State,  to  the  Mexican  Ambassador  June  21,  1912,  For.  Rel.  1912,  903,'had 
reference  to  the  display  of  the  American  flag  by  American  consular  officers 
in  Mexico. 

3  Compare  Mr.  Clay,  Secy,  of  State,  to  Mr.  Obregon,  Mexican  Minister, 
Oct.  24;  1827,  MS.  Notes  to  Foreign  Legation  III,  393,  Moore,  Dig.  IV,  554. 

"*  In  the  Printed  Personal  Instructions  to  Diplomatic  Agents  of  the  United 
States  (1885),  §  49,  Moore,  Dig.,  IV,  555,  it  was  declared  that  "if  any  diplo- 
matic agent  should  assert  the  right  of  worship,  within  his  legation,  for  him- 
self and  those  of  his  fellow-countrymen  who  profess  the  same  faith  as  he  does, 
he  would  be  upheld,  within  the  Umits  of  the  like  privilege  conceded  in  the 
country  of  his  sojourn  to  other  foreign  legations."  See,  also,  Religious  Free- 
dom.    In  General,  supra,  §  215. 

^  Mr.  Seward,  Secv.  of  State,  to  Mr.  Crosby,  Minister  to  Guatemala,  June 
19,  1862,  MS.  Inst.  American  States,  XVI,  219,  Moore,  Dig.,  IV,  554.  Also 
Art.  X,  Rules  of  the  Institute  of  International  Law,  Aug.  13,  1895,  Annuaire, 
XIV,  242. 

•  First  Amendment  to  the  Constitution. 

744 


TRANSIT  [§  432 

C 

§  432.   Transit. 

The  United  States  asserts  that  according  to  the  law  of  nations 
a  diplomatic  officer  is  entitled  to  a  right  of  transit  to  his  post,  by 
sea/  or  through  the  national  domain,  whether  land  ^  or  water,^  of 
a  State  other  than  that  to  which  he  is  accredited.  It  is  not  con- 
tended that  this  right  embraces  one  of  sojourn  in  such  State,"* 
or  that  the  territorial  sovereign,  especially  if  it  be  engaged  in  war, 
may  not  prescribe  the  route  of  transit.^  Nor  is  it  claimed  that 
the  officer  while  within  the  territory  of  a  third  State  is  entitled  to 
such  jurisdictional  immunities  as  he  may  justly  demand  while 
within  that  of  the  State  to  which  he  is  accredited.^  It  is  declared 
that  on  the  grounds  of  courtesy  he  is  usually  exempt  from  the 
payment  of  customs  duties.^ 

While  evidence  is  wanting  that  States  generally  have  as  yet 
agreed  to  yield  their  right  of  jurisdiction  over  diplomatic  officers 
not  accredited  to  them,  it  is  not  unreasonable  to  claim  for  such 
individuals  freedom  from  petty  annoyances,  whether  in  the  form 
of  criminal  prosecutions  for  minor  offenses,  or  of  civil  suits  of 
trivial  importance.^ 

1  Mr.  Pickering,  Secy,  of  State,  to  Mr.  King,  Minister  to  England,  June 
17,  1796,  MS.  Inst.  United  States  Ministers,  III,  178,  Moore,  Dig.,  IV,  559. 

2  See  documents  in  Moore,  Dig.,  IV,  557-558,  concerning  the  Case  of  Mr. 
Soule,  American  Minister  to  Spain,  who,  in  1854,  was  detained  by  France  while 
in  that  country  en  route  to  his  post.  It  may  be  observed  that  his  detention 
was  not  due  to  any  desire  on  the  part  of  France  to  prevent  an  envoy  of  the 
United  States  from  crossing  French  territory,  but  with  a  view  to  preventing 
the  sojourn  on  French  soil  of  one  whose  continued  presence  there  was  deemed 
objectionable.  Declares  Mr.  Moore :  "  With  regard  to  the  action  of  the 
French  Government  in  detaining  Mr.  Soule,  it  should  be  explained  that  Mr. 
Soul6,  who  was  a  native  of  France  and  a  naturalized  citizen  of  the  United 
States,  was  currently  reported  to  have  made  speeches  adverse  to  the  Govern- 
ment of  Louis  Napoleon  and  to  have  held  communication  with  some  of  its 

3  Mr.  Seward,  Secy,  of  State,  to  Mr.  Webb,  No.  180,  Sept.  23,  1860,  MS. 
Inst.  Brazil,  XVI,  153,  Moore,  Dig.,  IV,  560. 

''  The  United  States  made  no  such  contention  in  the  Soule  case. 

6  Declares  Hall :  "Even  this  meagre  privilege  (of  transit)  is  qualified  by  a 
right,  on  the  part  of  the  State  through  which  he  travels,  to  prescribe  a  route 
and  to  require  that  his  stay  shall  not  be  unnecessarily  prolonged."  Hig- 
<Tins'  7  ed.,  §  99. 

6  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  61. 

nd.  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Clayton,  Sept.  21,  1903, 
For.  Rel.  1903,  664,  where  it  was  stated  that  the  Secretary  of  Commerce 
and  Labor  had  expressed  opinion  "that  the  action  of  administrative  officers 
in  collecting  a  head  tax  on  account  of  the  diplomatic  and  consular  officers  of 
foreign  countries  seeking  admission  into  the  United  States  was  in  error." 
In  this  case  such  a  tax  had  been  imposed  upon  a  diplomatic  officer  of  Japan 
returning  to  his  country  via  El  Paso  and  San  Francisco,  after  a  residence  in 
Mexico  as  Charge  dAffaires  of  Japan  in  that  State. 

»Hall,  Higgins'  7  ed.,  §99;  Oppenheim,  2  ed.,  I,  §398,  pp.  469-471. 
Compare  Dana's  Wheaton,    §§244-247,  Moore,   Dig.,  IV,  556;    also  Wilson 

745 


§433]       THE    RIGHTS   AND   DUTIES   OF   MINISTERS 

4 
JURISDICTIONAL  IMMUNITIES 

a 

§  433.   Early  Practices. 

Long  before  the  Christian  era  the  idea  prevailed  that  the  per- 
son of  an  envoy  sent  by  one  ruler  to  another  should  be  inviolable. 
Because  Hanun,  King  of  the  Ammonites,  treated  with  contempt 
and  ridicule  the  messengers  of  David,  King  of  Israel,  the  latter 
waged  war  upon  the  former  and  overcame  him.^  The  Persians 
in  the  time  of  Xerxes  were  possessed  of  the  same  idea,  as  were 
also  the  Greeks.^  The  Roman  law  gave  recognition  to  it.  "An 
assault  upon  an  ambassador  or  herald  was  a  violation  of  the  jus 
gentium."  ^  Upon  the  murderer  of  such  a  person  the  Salic  Law 
imposed  a  penalty,  and  likewise  the  codes  of  the  Alamanni,  the 
Saxons,  the  Frisians  and  the  Lombards.^ 

Permanent  diplomatic  missions  began  to  be  established  by  the 
Italian  States  during  the  fifteenth  century,  and  before  its  close, 
by  France  and  other  powers  of  western  Europe.^  It  may  have 
been  the  safety  accorded  the  person  of  an  ambassador  which  made 
those  missions  possible ;  for  his  work  was  oftentimes  of  a  character 

V.  Blanco,  4  New  York  Supp.  714,  Moore,  Dig.,  IV,  557 ;  Holbrook  v.  Hender- 
son, 4  Sandf.  619,  Moore,  Dig.,  IV,  557.  See,  also,  Henry  Fort-Dumanoir, 
in  Clunet,  XXXV,  766-771,  and  in  response  thereto,  L.  A.  Tosi-Bellucci, 
Sulle  Immunita  Diplomatiche,  Rome,  1908.  For  a  discussion  of  the  views  of 
both  writers,  see  James  Barclay,  in  Am.  J .,  Ill,  1048-1051. 

1  I  Chron.,  XIX;  II  Samuel,  X.  See,  also,  T.  A.  Walker,  Hist.  Law  of 
Nations,  I,  34. 

2  Robert  Ward,  History  of  the  Law  of  Nations,  Dublin,  1795,  298 ;  also 
Phillimore,  II,  §  146,  citing,  W.  Wachsmuth,  Jus  Gentium  quale  obtinuit  apud 
Grcecos. 

3  T.  A.  Walker,  Hist.  Law  of  Nations,  I,  45,  citing  T.  Liv.,  IV,  17,  19,  32 ; 

VI,  19 ;   IX,  10 ;  XXI,  25 ;  XXXIX,  25. 

*  David  J.  HiU,  European  Diplomacy,  I,  39-40,  citing  Pertz,  Monumenta 
Gertnanice  Historica;  Lex  Alamannorum,  XXX;  Lex  Saxonum,  c.  7;  Lex 
Frisonum,  XVII,  and  Merkel's  edition  of  Lex  Salica,  p.  96. 

"  The  infidel  was  taught  by  his  Koran  the  sacredness  of  embassies,  though 
he  sometimes  interpreted  the  injunction  as  being  applicable  only  to  Mahom- 
etan nations  [citing  Miruss,  s.  333 ;  Merlin,  Ministre  Public,  V,  3],  and  the 
Turk  for  a  long  time  persisted  in  considering  the  European  Ambassador  as  a 
tolerated  spy  in  time  of  peace,  and  a  hostage  to  be  imprisoned  at  the  break- 
ing out  of  war.  Lasth',  it  should  be  observ^ed,  that  even  during  the  Middle 
Ages  of  violence  and  lawlessness  in  Europe,  it  was  the  principle  of  the  Roman 
law,  wliich  afterwards  took  deep  root  in  Christendom,  that  an  injury  done  to 
an  Ambassador  should  be  treated  by  the  Sovereign  of  the  wrongdoer  as  a  crime 
against  the  State."     Phillimore,  II,  §§  150  and  151. 

f  David  J.  Hill,  European  Diplomacy,  II,  153-154,  308-310.  The  same 
wTiter  declares  that :  "Although  permanent  missions  became  practicrJly  uni- 
versal before  the  close  of  the  sixteenth  century-,  the  e.xpression  '  Corps  Diplo- 
matique' did  not  come  into  use  until  about  the  middle  of  the  eighteenth." 
Id.,  II,  310,  Note  1. 

746 


EARLY  PRACTICES  [§  433 

such  as  to  imperil  the  life  of  one  not  specially  protected.  In- 
fluenced doubtless  by  the  nature  and  theories  of  Venetian  diplo- 
macy of  an  earlier  century,  that  of  the  sixteenth  and  seventeenth 
encouraged  the  fomentation  of  foreign  conspiracy  and  rebellion 
through  the  instrumentality  of  public  ministers.  The  question, 
therefore,  frequently  arose  concerning  the  treatment  to  be  accorded 
an  ambassador  who  plotted  against  the  life  of  the  monarch  to 
whom  he  was  accredited,  and  whose  very  presence  was  a  menace 
to  the  safety  of  the  State.  The  early  cases  reveal  a  singular  one- 
ness of  view. 

John  Leslie,  Bishop  of  Ross,  Ambassador  of  the  deposed  Mary, 
Queen  of  Scots,  was,  in  1571,  found  to  have  been  an  active  partici- 
pant in  the  plot  which  resulted  in  the  execution  of  the  Duke  of 
Norfolk.  Notwithstanding  the  opinion  of  eminent  civilians,  that 
according  to  the  Roman  law  the  Bishop  might  be  punished,  he 
was,  nevertheless,  merely  banished  from  the  Kingdom.^  In  1584, 
Mendoza,  the  Spanish  Ambassador  at  London,  conspired  to  over- 
throw Queen  Elizabeth.  Her  council  followed  the  opinions  of 
Albericus  Gentilis,  and  of  one  Hottoman,  who  advised  that  an 
ambassador  though  a  conspirator  could  not  be  lawfull}'  put  to 
death,  but  should  be  referred  to  his  sovereign  for  punishment. 
Mendoza  was  accordingly  compelled  to  depart  the  realm,  while 
charges  w^ere  pr'^f erred  against  him  in  Spain. ^  Three  years  later 
the  assassination  of  the  Queen  was  the  object  of  a  conspiracy  in 
which  L'Aubespine,  the  French  Ambassador,  was  a  participant. 
It  is  declared  that  Burleigh  reproached  him  with  the  design,  but 
never  thought  of  trying  him,  and  "  bade  him  beware  how  he  com- 
mitted Treason  any  more."  ^ 

In  the  reign  of  Henry  IV  of  France,  De  Zuniga,  the  Spanish 
Ambassador,  plotted  with  others  to  carry  off  to  Spain  ]\Ille. 
D'Entragues  and  her  son  by  Henry.  The  King,  upon  the  discovery 
of  the  plot,  would  not  permit  the  ambassador  to  be  punished.^ 

»  T.  A.  Walker,  Hist.,  I,  176-179,  citing  Camden,  Hist,  of  Elizabeth,  II, 
26  and  62.  As  to  the  misapplication  of  the  Roman  law  upon  which  the 
civilians  relied  in  declaring  that  the  Bishop  was  subject  to  the  jurisdiction 
of  England,  see  Phillimore,  II,  §  148,  citing  Wicquefort,  L'Ambassadeur  et 
ses  Fonctions,  I,  Chap.  XXVII,  also  Ward,  Hist.,  II,  312. 

Declares  Walker :  "The  English  civilians  were  by  no  means  alone  in  their 
view  of  the  rights  belonging  by  strict  law  to  the  local  sovereign."  (Hist., 
I,  179.)  He  adverts  to  the  opinion  of  Henry  IV  of  France,  in  Bruneau's 
Case,  1605,  Hist,  of  Henry  the  Great,  p.  318,  and  to  the  view  of  Coke,  4  Inst. 
153,  and  to  that  of  the  King's  Attorney  in  1615,  in  the  case  of  Roy  v.  Owen, 
1  Rolle,  185. 

2  Robert  Ward,  Hist.,  II,  314,  citing  Camden,  296. 

^  Id.,  II,  315,  citing  Camden,  ad  an.  1587. 

*  Id.,  II.  315-316,  citing  Wicquefort,  I.  392. 

747 


433]      THE    RIGHTS   AND   DUTIES   OF   MINISTERS 

In  1603,  one  of  the  suite  of  the  Due  de  Sully,  then  Marquis  of 
Rosny,  Ambassador  at  London,  killed  an  Englishman  in  the  course 
of  a  quarrel.  The  Due,  assembling  a  council  of  Frenchmen,  con- 
demned his  attache  to  death,  but  surrendered  him  to  the  English 
authorities.  King  James  I  pardoned  him.^  In  1618,  Alphonso 
de  la  Cueva,  Marquis  de  Bedmar,  the  Spanish  Ambassador  to 
Venice,  was  shown  to  have  entered  into  a  conspiracy  to  burn  the 
city,  murder  the  nobles  and  overturn  the  government.  Never- 
theless, the  Senate  merely  sent  him  to  Milan,  and  requested  his 
recall  by  the  King  of  Spain.^  In  the  reign  of  James  I,  the  Spanish 
Ambassadors,  Inoyosa  and  Colonna,  announced  to  the  King 
that  the  Duke  of  Buckingham  sought,  with  the  aid  of  Parliament, 
to  imprison  and  dethrone  him.  It  is  said  that  "both  the  Court 
and  the  Parliament  deemed  this  a  scandalous  libel,  but  knew  not 
how  to  proceed."  Upon  the  advice  of  Sir  Robert  Cotton,  com- 
plaint was  made  to  the  King  of  Spain,  declares  Ward,  and  the 
Ambassadors  were  allowed  to  depart,  but  without  the  usual 
presents.^ 

§  434.   The  Same. 

The  foregoing  instances  illustrate  the  significant  fact  that  be- 
fore the  time  of  Grotius  there  had  already  developed  usages  which 
served  on  the  one  hand  to  exempt  an  ambassador  from  local  juris- 
diction, and  on  the  other,  to  restrain  him  from  the  commission 
of  crime.'*    Nations  which  had  developed  and  accepted  both  cus- 

1  Robert  Ward,  316,  citing  Mem.  de  SuU.  II,  191,  192. 

2  Id.,  II,  316-317,  citing  St.  Real.,  Conjur.  des  Esp.  Contr.  Ven. 

'  Id.,  II,  317-318,  citing  Cotton's  Remains,  and  Wicquefort,  I,  393.  Ward 
mentions  other  later  cases,  among  them  that  of  De  Bass,  Minister  of  France 
to  Cromwell,  in  1654  (II,  319) ;  that  of  the  Spanish  Ambassador  in  the  reign 
of  Charles  II  (II,  319) ;  that  of  the  English  Ambassador  at  Constantinople 
in  1646  (II,  319-320) ;  that  of  Don  Pantaleon  Sa,  brother  of  the  Portuguese 
Ambassador  to  England  in  the  time  of  Cromwell  (II,  322-328).  Sa  was  sub- 
jected to  the  local  jurisdiction.  Declares  Ward:  "All,  therefore,  that  can 
fairly  be  drawn  from  the  precedent,  as  to  the  decision  of  the  then  existing 
law  of  England  is,  that  the  suite  of  an  ambassador,  if  they  committed  murder, 
were  liable  to  be  tried  for  it  by  the  courts  of  the  country"  (II,  323-324).  Men- 
tion is  also  made  of  the  case  of  Gyllenburg,  Swedish  Ambassador  at  London, 
who,  in  1717,  was  charged  with  being  a  participant  in  a  conspiracy  against  the 
country  and  the  crown,  was  arrested,  and  his  cabinet  broken  into  and  searched 
(II,  329-330,  citing  Tindal,  Contin.  of  Rap.,  and  Bynkershoek,  De  for.  Leg., 
c.  18). 

See,  also,  Case  of  the  Earl  of  Holdernesse,  1774,  Phillimore,  II,  §  167,  taken 
from  Martens,  C.  C,  II,  App.  479;  also  case  of  Van  Hoey,  1746,  Philli- 
more, II,  §  168,  taken  from  Martens,  C.  C,  I,  311. 

"•  Grotius  declared  in  his  De  Jure  Belli  et  Pads,  pubUshed  in  1625,  that 
"by  the  common  consent  of  nations"  ambassadors  are  not  bound  by  the 
civil  law  of  the  people  among  whom  they  live,  "as  being,  by  a  certain  fiction 
in  the  place  of  those  who  send  them ;   and  by  a  similar  fiction,  they  are,  as  it 

748 


EXEMPTION  FROM  JUDICIAL  PROCESS  [§  435 

toms,  acquiesced  in  the  continuance  of  each.  States  yielded  the 
right  of  jurisdiction  because  the  proper  exercise  of  his  functions 
necessitated  the  complete  independence  of  the  public  minister, 
which  could  not  otherwise  be  assured.  They  retained,  however, 
the  right  to  prevent  his  violation  of  their  laws  because  the  require- 
ments of  self-defense  left  no  alternative.  This  circumstance  was 
not  without  its  effect  upon  the  conduct  of  diplomacy.  The  exist- 
ing practice  reveals  generally  a  complete  abandonment  of  the  early 
theories.  At  the  present  time  the  functions  of  a  minister  are  not 
deemed  to  be  curtailed  by  his  respect  for  the  local  law ;  and  his 
usefulness  to  his  own  country  is  increasingly  regarded  as  depend- 
ent upon  his  possession  of  a  reputation  unblemished  by  any  im- 
putation of  hostility  or  unfriendliness  towards  the  State  to  which 
he  is  accredited.^ 


§  435.   Exemption  from  Judicial  Process. 

A  diplomatic  representative  possesses  immunity  from  the 
criminal  and  civil  jurisdiction  of  the  country  of  his  sojourn,  and 
cannot  be  sued,  arrested  or  punished  by  the  law  of  that  country.^ 
The  statutory  law  of  the  United  States  recognizes  such  immunity, 
rendering  void  the  process  whereby  "the  person  of  any  public 
minister  of  any  foreign  prince  or  State,  authcvrized  and  received 
as  such  by  the  President,  or  any  domestic  or  domestic  servant  of 
any  such  minister,  is  arrested  or  imprisoned,  or  his  goods  or  chattels 
are  distrained,  seized  or  attached  " ;  and  it  subjects  to  severe 
penalties  him  who  sues  out  or  executes  such  process.^    Ignorance 

were,  extra-territorium."  The  fiction  was  employed  merely  to  illustrate 
the  situation  in  which  an  ambassador  appeared  to  find  himself,  rather  than 
the  reason  for  the  exemption  to  be  accorded  him.  If  such  an  individual 
was  guilty  of  a  serious  crime  tending  to  produce  public  disorder,  Grotius  de- 
clared that  he  should  be  sent  to  his  monarch  with  a  demand  for  punishment 
or  surrender;  and  that  if  the  ambassador  used  force,  he  might  undoubtedly 
be  killed,  not  in  the  way  of  punishment  but  in  the  way  of  natural  defense, 
'^non  per  modum  poprue,  sed  per  modum  naturalis  defensionis."  Whewell's 
Edition,  Book  II,  Chap.  XVIII,  5  and  7. 

1  That  the  activities  of  Austro-Hungarian  and  German  diplomatic  offi- 
cers in  the  United  States  in  the  year  191.5  were  based  on  a  different  theory, 
betokening  a  recrudescence  of  medieval  doctrine,  is  not  to  be  accepted  as 
indicating  that  enlightened  States  are  disposed  to  encourage  departure  from 
the  principle  stated  in  the  text. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  46, 
Moore,  Dig.,  IV,  631. 

See  discussion  of  the  rational  basis  of  immunity,  contained  in  Charles 
Ozanam,  L'Immunite  Civile  de  Juridiction  des  Agents  Diplomatiques,  Paris, 
1912,  35-60. 

^  Rev.  Stat.  §§  4063,  4064  and  406.5.  The  last  of  the  foreging  sections 
declares  that:  "The  two  j  receding  sections  shall  not  apply  to  any  case  where 

749 


§435]       THE    RIGHTS   AND   DUTIES   OF    MINISTERS 


of  the  official  character  of  a  person  entitled  to  diplomatic  immuni- 
ties does  not  excuse  his  arrest.^  Nor  is  knowledge  of  the  law  made 
an  ingredient  in  an  offense  against  his  immunities.^ 

Except  by  the  consent  of  his  government,  an  American  diplomatic 
officer  cannot  waive  his  privilege,  for  it  is  regarded  as  belonging 
to  his  office  rather  than  to  himself.  It  is  not  to  be  supposed, 
however,  that  he  would  intentionally  avail  himself  of  his  immunity 
in  order  to  evade  just  obligations.^ 

A  minister  may  doubtless,  without  the  knowledge  and  against 
the  will  of  his  government,  by  appealing  to  a  local  court,  as  in  a 
case  of  contentious  litigation  involving  his  personal  interests, 
subject  himself  to  its  jurisdiction.'*    An  American  envoy  is  not, 

the  person  against  whom  the  process  is  issued  is  a  citizen  or  inhabitant  of  the 
United  States,  in  the  service  of  a  public  minister,  and  the  process  is  founded 
upon  a  debt  contracted  before  he  entered  upon  such  service ;  nor  shall  the  pre- 
ceding section  apply  to  any  case  where  the  person  against  whom  the  process 
is  issued  is  a  domestic  servant  of  a  public  minister,  unless  the  name  of  the 
servant  has,  before  the  issuing  thereof,  been  registered  in  the  Department 
of  State,  and  transmitted  by  the  Secretary  of  State  to  the  marshal  of  the 
District  of  Columbia,  who  shall  upon  receipt  thereof  post  the  same  in  some 
public  place  in  his  office." 

Concerning  what  constitutes  a  violation  of  §§  4063  and  4064,  see  Mr. 
Brewster,  Atty.-Gen.,  to  Mr.  Frelinghuysen,  Secy,  of  State,  July  3,  1883, 
MS.  Misc.  Let.,  Moore,  Dig.,  IV,  610;  Mr.  Frelinghuysen,  Secy,  of  State,  to 
Mr.  Preston,  Haitian  Minister,  July  10,  1883,  MS.  Notes  to  Haiti,  I,  301, 
Moore,  Dig.,  IV,  640;  United  States  v.  Benner,  1  Baldwin,  234,  Moore, 
Dig.,  IV,  641. 

Compare  the  Act  of  Parliament  of  7  Anne,  c.  12  (1708),  and  concerning  it 
Triquet  et  al.  i'.  Bath,  3  Burrow,  1478,  Heathfield  v.  Chilton,  4  Burrow, 
2015;  Parkinson  v.  Potter,  L.  R.  16  Q.  B.  Div.  152,  and  cases  there  cited; 
also  Scott's  Cases  (1902  ed.),  189-197. 

See  Case  of  one  Chance,  held  on  a  minor  offense  at  London,  in  August, 
1918,  in  which  the  accused  claimed  immunity  as  an  official  of  the  American 
Embassy.  There  was  introduced  in  the  course  of  the  prosecution  a  letter  from 
Mr.  Balfour,  Foreign  Secretary,  to  the  effect  that  the  name  of  the  defendant 
had  not  been  sent  to  the  Foreign  Office  by  the  American  Ambassador  to  in- 
dicate that  he  was  a  member  of  his  staff,  and  so  did  not  appear  in  the  list 
of  names  of  persons  entitled  to  claim  immunity  from  legal  proceedings  on  the 
ground  of  diplomatic  privilege,  and  that  the  name  of  a  person  entitled  to  such 
immunity  on  such  ground  must  be  on  that  list.  Jour.  Comp.  Leg.  (n.  s.), 
XLI,  Dec.  1918,  279. 

^  Mr.  Fish,  Secy,  of  State,  to  Mr.  Washburne,  Minister  to  France,  No. 
873,  Jan.  11,  1877,  MS.  Inst.  France,  XIX,  436,  Moore,  Dig.,  IV,  634. 

See,  however,  the  requirement  of  Rev.  Stat.  §  4065  respecting  the  regis- 
tration of  a  minister's  servant. 

=  Mr.  Fish,  Secv.  of  State,  to  Mr.  de  Vaugelas,  Charge,  Dec.  28,  1876,  MS. 
Notes  to  France,  IX,  173,  Moore,  Dig.,  IV,  635. 

^  The  language  of  the  text  is  substantiallv  that  contained  in  Instructions  to 
Diplomatic  Officers  of  the  United  States  (1897),  §  46,  Moore,  Dig.,  IV,  631; 
also  of  United  States  v.  Benner,  1  Baldwin,  234. 

See,  in  this  connection,  In  re  Republic  of  Bolivia  Exploration  S^^ldicate, 
30  L.  T.  Rep.  (Ch.  Div.)  78 ;  also  Note  thereon  in  Harv.  Law  R.  XXVII,  489 ; 
also  Re  Saurez,  117  L.  T.  R.  239  and  Note  thereon  in  Yale  Law  J.  XXVII, 
.392. 

*  Case  of  Mr.  Jay,  American  Minister  at  Vienna,  in  1873,  Moore,  Dig., 
IV,  635-638,  and  documents  there  cited. 

750 


GIVING  OF  TESTIMONY  [§  436 

according  to  the  Department  of  State,  clothed  with  diplomatic 
immunity  to  enable  him  to  indulge  with  impunity  in  personal 
controversies,  or  to  escape  from  liabilities  to  which  he  might 
otherwise  be  subjected.^ 


§  436.    Giving  of  Testimony. 

The  law  of  nations  is  believed  to  censure  the  compelling  of 
a  diplomatic  representative  to  testify  in  the  country  of  his  sojourn, 
before  any  tribunal  whatever.  The  right  of  exemption  is  regarded 
by  the  Department  of  State  as  one  not  to  be  divested  save  with 
the  permission  of  his  government.  Thus  if  an  American  diplo- 
matic officer  is  called  upon  to  give  testimony  under  circumstances 
which  do  not  concern  the  business  o^  his  mission,  and  where  his 
response  would  serve  to  promote  justice,  he  is  cautioned  to  abstain 
from  so  doing  without  the  consent  of  the  President,  which  it  is 
declared  in  any  such  case  would  probably  be  granted.^ 

When  a  minister  witnesses  the  commission  of  a  criminal  act  in 
the  State  of  his  sojourn,  as  did  Seiior  Comacho,  the  Venezuelan 
Minister,  who  was  present  at  President  Garfield's  assassination, 
July  2,  1881,  his  government  may  instruct  him  to  waive  his  rights 
and  to  appear  as  a  witness  in  the  case.^  The  United  States  has 
similarly  permitted  an  American  diplomatic  officer  to  give  his 
testimony  on  terms  consistent  with  his  representative  dignity, 
indicating,  however,  that  unless  an  interrogatory  in  open  court 

1  Mr.  Fish,  Secy,  of  State,  to  Mr.  Jay,  Minister  to  Austria-Hungary,  in 
same  case.  No.  457,  Dec.  29,  1874,  MS.  Inst.  Austria,  II,  289,  290,  Moore, 
Dig.,  IV,  637,  in  which  it  was  also  said:  "The  assertion  of  these  immunities 
should  be  reserved  for  more  important  and  delicate  occasions,  and  should 
never  be  made  use  of  when  the  facts  of  the  particular  case  can  expose  the 
envoy  to  the  suspicion  that  private  interest  or  a  desire  to  escape  personal  or 
pecuniary  liability  is  the  motive  which  induced  it."  Also  §§1  and  2,  Art. 
XVI,  of  Rules  adopted  by  the  Institute  of  International  Law,  Aug.  13,  1895, 
Annuaire,  XIV,  244. 

^  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  48, 
Moore,  Dig.,  IV,  642;  Mr.  Fish,  Secy,  of  State,  to  Mr.  Marsh,  Minister  to 
Italy,  No.  547,  Nov.  1,  1876,  MS.  Inst.  Italy,  II,  1,  Moore,  Dig.,  IV,  644; 
Mr.  Gresham,  Secy,  of  State,  to  Mr.  Gray,  Minister  to  Mexico,  Jan.  12,  1894, 

iFor.  Rel.  1894,  426,  Moore,  Dig.,  IV,  645.  See,  also,  in  this  connection.  Art. 
XVII  of  Rules  adopted  by  the  Institute  of  International  Law,  Aug.  13,  1895, 
Annuaire,  XIV,  244. 

^  Statement  of  the  District  Atty.  in  calling  Seuor  Comacho  to  the  stand 
as  a  witness  for  the  prosecution  in  the  trial  of  Guiteau,  Guiteau's  Trial,  I, 
136,  Moore,  Dig.,  IV,  644.  Compare  refusal  of  the  Government  of  the  Nether- 
lands in  1856,  to  permit  its  diplomatic  representative  to  testify  in  the  crim- 
inal courts  of  the  United  States,  S.  Ex.  Doc.  21,  34  Cong.,  3  Sess.,  Lawrence's 
Wheaton  (1863),  393,  394,  quoted  in  Moore,  Dig.,  IV,  643-644. 

751 


§  436]      THE    RIGHTS  AND   DUTIES   OF  MINISTERS 

should   be   deemed   indispensable,  a  personal  deposition  at    the 
Embassy  would  be  preferable.^ 

The  successful  outcome  of  a  civil  proceeding  initiated  by  a 
foreign  minister  may  depend  upon  his  readiness  to  testify.  He 
should  submit  as  a  witness  to  the  jurisdiction  of  the  tribunal  whose 
aid  he  invokes.^  He  should  evince  equal  readiness  to  do  so  in 
case  he  endeavors  to  institute  criminal  proceedings  against  the 
perpetrator  of  a  crime,  of  the  commission  of  which  the  minister 
was  the  sole  witness.^ 


§  437.   Property. 

Immunity  from  local  jurisdiction  extends  to  a  diplomatic 
representative's  dwelling-house  and  goods,  and  the  archives  of 
the  mission.  These  cannot  be  entered,  searched  or  detained 
under  process  of  local  law  or  by  the  local  authorities.^  It  is  not 
believed  that  by  merely  entering  into  a  contract  for  the  rental 
of  premises  to  be  used  for  purposes  connected  with  his  mission  a 
minister  thereby  waives  the  exemption  of  his  belongings  placed 
therein,  so  as  to  enable  the  lessor  to  attach  the  same,  even  though 
the  local  law  creates  by  implication  a  lien  in  favor  of  the  lessor 
in  the  case  of  a  similar  contract  between  private  parties.  A  pledge 
of  such  belongings  by  the  minister  might  serve,  however,  as  Dana 
has  pointed  out,  to  operate  as  a  waiver  of  the  diplomatic  privilege.^ 

If  a  diplomatic  representative  holds,  in  a  foreign  country,  real 

1  Telegram,  of  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Iddings,  Secy,  of  the 
American  Embassy  at  Rome,  Aug.  1,  1901,  For.  Rel.  1901,  302;  Moore,  Dig., 
IV,  646. 

2  Mr.  Van  Buren,  Secy,  of  State,  to  Mr.  Bille,  Danish  Charge  d' Affaires, 
Oct.  23,  1830,  MS.  Notes'to  For.  Legs.  IV,  312,  Moore,  Dig.,  IV,  642. 

*  Mr.  Hunter,  Acting  Secy,  of  State,  to  Baron  von  Gerolt,  Aug.  2,  1852, 
MS.  Notes  to  German  States,  VI,  310,  Moore,  Dig.,  IV,  644;  also  Mr.  Porter, 
Acting  Secy,  of  State,  to  Mr.  Gana,  Chilean  Minister,  Jan.  3,  1887,  MS.  Notes 
to  Chilean  Legation,  VI,  352,  Moore,  Dig.,  IV,  645;  Mr.  Wilson,  Acting 
Secy,  of  State,  to  Mr.  Morgan,  Minister  to  Cuba,  March  15,  1909,  For.  Rel. 
1909,  238. 

*  The  language  of  the  text  is  that  of  Instructions  to  Diplomatic  Officers  of 
the  United  States  (1897),  §  49,  Moore,  Dig.,  IV,  646.  See,  also.  Opinion  of 
Mr.  Toucey,  Atty.-Gen.,  5  Ops.  Attys.-Gen.  69 ;  Moore,  Dig.,  IV,  646. 

According  to  the  Act  of  March  9,  1888,  Chap.  30,  25  Stat.  45,  U.  S.  Comp. 
Stat.  1918,  §  3501,  the  "Act  to  restrict  the  ownership  of  real  estate  in  the 
Territories  to  American  citizens  and  so  forth",  approved  March  3,  1887,  was 
so  amended  as  not  to  apply  or  operate  in  the  District  of  Columbia,  "so  far  as 
relates  to  the  ownership  of  legations,  or  the  ownership  of  residences  by  repre- 
sentatives of  foreign  governments,  or  attaches  thereof." 

*  Dana's  Note,  No.  130,  Dana's  Wheaton,  respecting  the  Case  of  Mr. 
Wheaton,  Minister  to  Prussia;  also  Dana's  Wheaton,  §§228-241,  Moore, 
Dig.,  IV,  646-648. 

752 


PERSONS    OTHER    THAN    HEADS    OF   MISSIONS     [§438 

or  personal  property  aside  from  that  which  pertains  to  him  as 
a  minister,  it  is  said  to  be  subject  to  the  local  laws.^ 


§  438.   Persons  Other  than  Heads  of  Missions. 

The  suite  of  a  public  minister  embraces  generally  three  dis- 
tinct classes  of  individuals ;  first,  his  official  staff,  such  as  the 
secretaries  and  attaches  of  the  mission  ;  secondly,  the  members  of 
his  family,  such  as  his  wife  and  children ;  and  thirdly,  persons  in 
his  private  service  —  his  unofficial  staff  —  such  as  his  servants,  his 
private  secretary  and  the  tutor  or  governess  of  his  children.^ 
Members  of  each  class  may  also  be  members  of  the  minister's 
household.  Except  possibly  in  the  case  of  a  counselor  or  con- 
seiller,  w^ho  is  said  to  enjoy  a  certain  representative  character,^ 
the  immunity  asserted  in  behalf  of  each  individual  is  due  to  his 
dependence  upon  the  minister,  and  to  the  effect  upon  the  latter 
of  the  subjection  of  the  former  to  the  local  laws.'^  The  abrupt 
arrest  and  confinement  of  any  one  would  clearly  serve  to  inter- 
fere with  the  minister's  free  exercise  of  his  functions.^  Hence,  it 
is  oftentimes  the  method  of  asserting  jurisdiction  rather  than  the 

^  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  47, 
Moore,  Dig.,  IV,  646. 

2  Oppenheim,  2  ed.,  I,  §  401,  pp.  472-473,  who  regards  as  a  distinct  and 
fourth  class,  couriers,  who  "are  the  bearers  of  despatches  sent  by  the  envoy 
to  his  home  State,  who  on  their  waj'  back  also  bear  despatches  from  the  home 
State  to  the  envoy.  Such  couriers  are  attached  to  most  legations  for  the 
safety  and  secrecy  of  the  despatches."  See,  also,  Jean  Roederer,  De  Vapplica- 
tion  des  immunites  de  Vamhassadeur  au  personnel  de  Vambassade,  Paris,  1904. 

^  Mr.  Day,  Secy,  of  State,  to  Mr.  Hitchcock,  Minister  to  Russia,  May  23, 
1898,  For.  Rel.  1898,  532,  quoting  Calvo  in  his  Dictionary  of  International 
Law,  to  the  effect  that  a  conseiller  "is  clothed  with  a  certain  representative 
character;  enjoys  immunities  of  his  own,  independently  of  the  ambassador, 
or  of  the  chief  of  legation,  but  has  no  right  to  any  ceremonial."  Vattel  like- 
wise regards  the  secretary  of  a  mi-ssion  as  "enjoying  in  his  own  right  the  pro- 
tection of  the  law  of  nations,  and  the  immunities  annexed  to  his  office, 
independently  of  the  ambassador."  Book  IV,  Chap.  IX,  §  122.  See,  alsc 
Oppenheim,  2  ed.,  I,  §  401.  The  Instructions  to  Diplomatic  Officers  of  the 
United  States  (1897)  strongly  intimate,  however,  that  the  immunities  of  a 
secretary  are  derived  from  his  relation  to  the  chief  of  his  mission.  §§52  and 
53,  Moore,  Dig.,  IV,  433  and  648. 

*  "The  privilege  is  not  that  of  the  servant  but  of  the  ambassador.  It  is 
based  on  the  assumption,  that,  by  the  arrest  of  any  of  his  household  retinue, 
the  personal  comfort  and  state  of  the  ambassador  might  be  affected."  Maule, 
J.,  in  Tavlor  v.  Best,  14  C.  B.  487,  524,  quoted  in  Abdy's  Kent,  2  ed.,  121, 
Moore,  Dig.,  IV,  658. 

*  See,  for  example,  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Lowell,  Minister  to 
Spain,  No.  132,  Feb.  25,  1879,  MS.  Inst.  Spain,  XVIII,  370,  Moore,  Dig., 
IV,  660. 

753 


§438]      THE    RIGHTS   AND   DUTIES   OF   MINISTERS 

right  of  the  territorial  sovereign  to  do  so,  that  gives  rise  to  con- 
troversy.^ 

The  personal  immunity  of  a  diplomatic  representative  extends 
generally  to  the  secretaries  of  his  legation  and  others  belonging 
to  the  first  of  the  above  named  classes. ^  A  State  may,  however, 
not  unreasonably  decline  to  yield  immunity  to  a  secretary  who 
is  one  of  its  own  nationals,  save  on  such  terms  as  it  prescribes.^ 

His  wife,  children,  parents  and  other  members  of  his  family, 
such  as  his  brothers  and  nieces,  and  possibly  also  his  household 
guests,  share  the  minister's  exemption  while  they  live  with  him ; 
and  likewise  persons  similarly  connected  with  a  secretary  of  the 
mission,  share,  under  similar  circumstances,  the  immunity  accorded 
him  upon  whom  they  depend.^ 

The  extent  to  which  persons  of  the  third  class  —  those  in  the 
private  service  of  a  minister  —  receive  the  benefit  of  his  immunity 
is  not  as  yet  fully  disclosed  by  existing  practice.  It  is  not  un- 
reasonable for  a  State  to  decline  to  yield  exemptions  to  a  servant 
who  is  one  of  its  own  nationals.^     It  may  also  make  the  enjoyment 

1  Mr.  Bavard,  Secy,  of  State,  to  Mr.  Straus,  Minister  to  Turkey,  JMarch 
17,  1888,  For.  Rel.  1888,  II,  1568,  Moore,  Dig.,  IV,  G61. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  53, 
citing  Rev.  Stats.  §§  4063  and  4064,  Moore,  Dig.,  IV,  648.  Also  Art.  XII, 
Rules  of  the  Institute  of  International  Law,  Aug.  13,  1895,  Annuaire,  XIV,  243. 

3  Rev.  Stats.  §  4065.     See,  also,  in  this  connection.  Opinion  of  Mr.  Wirt, 
-  Atty.-Gen.,  to  Mr.  Adams,  Secy,  of  State,  March  17,  1818,  MS.  Misc.  Let., 

respecting  the  Case  of  Sarmiento,  Moore,  Dig.,  IV,  654. 

*  Art.  XII,  Rules  of  the  Institute  of  International  Law,  Aug.  13,  1895, 
An7iuaire,  XIV,  243.  Also  communication  of  R.  Robin,  in  Rev.  Gen.,  XIV, 
159,  respecting  the  Case  of  Carlos  Waddington,  son  of  the  Charge  d' Affaires 
of  Chile  at  Brussels,  who  on  Feb.  24,  1906,  killed  in  that  city  the  Secretary  of 
the  Chilean  Legation.  The  father  surrendered  the  son,  who  had  taken 
refuge  in  the  Legation,  to  the  Belgian  authorities,  who  withheld  action  until 
the  Chilean  Government  also  announced  its  consent  to  the  waiver  of  any 
claim  to  immunity  in  behalf  of  the  son.  The  latter  was  thereupon  tried  and 
acquitted.  See,  also,  respecting  this  case,  Oppenheim,  2  ed.,  I,  §  404.  Com- 
pare the  early  Case  of  Don  Pantaleon  Sa,  Ward,  Hist.,  II,  322-328. 

"The  wife  of  a  secretary  of  a  foreign  legation  in  this  country  is,  w^hile 
with  him  in  his  official  capacity,  subject  in  respect  to  her  personal  estate,  to 
the  laws  of  the  country  he  represents."  Moore,  Dig.,  IV,  652,  citing  Mr. 
Frelinghuysen,  Secy,  of  State,  to  Mr.  Lawrence,  March  31,  1883,  146  MS. 
Dom.  Let.  287,  based  upon  Wheat.,  Int.  Law,  300-1,  Dana's  ed.,  and  4  Phil- 
limore.  Int.  Law,  122-123. 

^  In  the  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897), 
it  is  declared  that  while  the  servants  of  a  minister  generally  share  his  exemp- 
tion "this  does  not  always  apply  when  they  are  citizens  or  subjects  of  the 
country  of  his  sojourn."     §  53,  citing  Rev.  Stats.  §  4065. 

See,  also,  Mr.  Bayard,  Secv.  of  State,  to  Mr.  Straus,  Minister  to  Turkey. 
March  17,  1888,  For.  Rel.  1888,  II,  1568,  Moore,  Dig.,  IV,  661 ;  Case  of  Herr- 
mann Tolk,  For.  Rel.  1907,  I,  527-530 ;  Mr.  Evarts,  Secy,  of  State,  to  Mr. 
Lowell,  Minister  to  Spain,  No.  132,  Feb.  25,  1879,  MS.  Inst.  Spain,  XVIII, 
370,  Moore,  Dig.,  IV,  660 ;  par.  3,  Art.  I  and  Art  XV,  Rules  of  the  Institute  of 
International  Law,  Aug.  13,  1895,  Annuaire,  XIV,  240  and  244 ;  Case  of  the 
Chauffeur  of  the  Secretary  of  the  American  Embassy  at  London,  1906,  Rev. 

754 


PERSONS   OTHER   THAN   HEADS   OF  MISSIONS     [§  438 

of  Immunity  by  a  person  attached  to  the  unofficial  staff  of  the 
minister  dependent  upon  compliance  with  conditions  which  it 
prescribes.^  If,  however,  it  withholds  the  privilege,  it  should 
exercise  care  to  assert  the  right  of  jurisdiction  in  a  manner  such 
as  to  cause  the  least  possible  embarrassment  to  the  minister. 
The  State  should  consult  his  convenience  as  to  the  time  and 
place  of  the  service  of  process.^  Its  officers  should  not  be  permitted 
to  invade  his  house.^ 

A  servant,  or  other  member  of  the  unofficial  staff  of  a  mission 
who  is  not  a  national  of  the  State  of  sojourn,  appears  to  be  increas- 
ingly regarded  as  sharing  his  master's  immunity  throughout  the 
period  of  service ;  yet  upon  his  discharge  therefrom,  to  be  subjected 
to  the  local  law,  and  punishable,  if  need  be,  for  criminal  acts 
committed  during  the  course  of  his  employment."*  This  practice 
indicates  that  whenever  interference  with  the  minister  is  eliminated, 
the  reason  for  the  exemption  ceases,  and  so  justifies  the  assertion 
of  jurisdiction  by  the  territorial  sovereign. 

Gen.,  XVI,  377,  citing  Law  Times,  1906,  p.  319;  also  F.  Pujia,  "Immunita 
di  Giurisdizione  dello  Chauffeur  al  Servizio  di  un  Agente  diplomatico" ,  in  Ri- 
vista  di  Diritto  Internazionale,  1  ser.,  Ill,  343. 

Compare  Claim  of  the  United  States  in  1905,  respecting  the  immunity  of 
the  Dragoman  of  the  American  Legation  at  Constantinople,  For.  Rel.  1905, 
881-882. 

Declares  Hall:  "It  is  no  doubt  generally  held  that  they  [the  servants  of 
a  minister]  aannot  be  arrested  on  a  criminal  charge  and  that  a  civil  suit  cannot 
be  brought  against  them,  without  the  leave  of  their  master,  and  that  it  rests 
in  his  discretion  whether  he  will  allow  them  to  be  dealt  with  by  the  local  author- 
ities, or  whether  he  wUl  reserve  the  case  or  action  for  trial  in  his  own  coun- 
try. But  in  England,  at  any  rate,  this  extent  of  immunity  is  not  recognised. 
Under  the  statute  of  Anne,  the  privilege  of  exemption  from  being  sued,  pos- 
sessed by  the  servant  of  an  ambassador,  is  lost  by  '  the  circumstance  of  trad- 
ing' ;  and  when  the  coachman  of  Mr.  Gallatin,  the  United  States  minister 
in  London,  committed  an  assault  outside  the  house  occupied  by  the  mission 
the  local  authorities  claimed  to  exercise  jurisdiction  in  the  case.  The  English 
practice  is  exceptional;  but  it  is  not  unreasonable."  Higgins'  7  ed.,  §51. 
Respecting  the  Case  of  Mr.  Gallatin's  coachman,  see  Moore,  Dig.,  IV,  656- 
657,  quoting  Lawrence's  Wheaton  (ed.  1863),  1006,  1007. 

1  §  4065,  Rev.  Stat. 

2  Mr.  Clay,  Secy,  of  State,  to  Mr.  Ringgold,  Marshal,  Oct.  30  and  Nov.  2, 
1825,  21  MS.  Dom.  Let.  180,  181,  Moore,  Dig.,  IV,  656;  Mr.  Forsyth,  Secy, 
of  State,  to  Mr.  Calderon  de  la  Barca,  Spanish  Minister,  Sept.  18,  1838,  MS. 
Notes  to  Spanish  Legation,  VI,  34,  Moore,  Dig.,  IV,  658;  Mr.  Cass,  Secv. 
of  State,  to  Mr.  Zegarra,  Peruvian  Minister,  June  13,  1860,  MS.  Inst.  Peru, 
I,  213,  Moore,  Dig.,  IV,  660 ;  Mr.  Root,  Secy,  of  State,  to  Mr.  Garrett,  Ameri- 
can Charge  at  Berlin,  June  10,  1908,  For.  Rel.  1907,  I,  529. 

3  Mr.  Brent,  Chief  Clerk,  to  Mr.  Ringgold,  U.  S.  Marshal,  Dec.  10,  1825, 
21  MS.  Dom.  Let.  210,  Moore,  Dig.,  IV,  656;  Opinion  of  Mr.  Randolph, 
Atty.-Gen.,  June  26,  1792,  1  Ops.  Attys.-Gen.  26,  Moore,  Dig.,  IV.  653; 
Opinion  of  Mr.  Lincoln,  Attv-Gen.,  1804,  1  Ops.  Attys.-Gen.,  141,  Moore, 
Dig.,  IV,  652.     Also  Dana's  Wheaton,  Dana's  Note  No.  129. 

^  Case  of  French  servant  of  the  Spanish  Ambassador  at  Berlin,  who  was 
charged  with  assault  upon  a  fellow  servant,  who  was  a  German,  and  mentioned 
in  a  communication  of  Mr.  Jackson,  Charge  at  Berlin,  to  Mr.  Hay,  Secy,  of 
State,  July  5,  1899,  For.  Rel.  1899,  318,  Moore,  Dig.,  IV,  652. 

755 


§439]      THE    RIGHTS   AND   DUTIES   OF   MINISTERS 


§  439.    Ministers  Recalled  or  Not  Received. 

Neither  his  diplomatic  immunitj^  nor  his  right  to  protection 
are  withdrawn  from  a  minister  by  the  bare  suspension  or  termi- 
nation of  his  mission.  They  continue  for  a  reasonable  time  there- 
after, pending  his  departure  from  the  State  to  which  he  is  ac- 
credited.^ It  is  common,  in  time  of  peace,  to  extend  to  a  minister 
a  liberal  interval  within  which  to  quit  the  country.^  If,  however, 
he  abuses  the  privilege  by  an  undue  lingering  after  his  official 
functions  are  at  an  end,  the  State  of  his  sojourn  is  justified  in  re- 
garding his  immunities  as  forfeited.^ 

Even  though  the  termination  of  his  mission  is  occasioned  by 
war  between  his  own  State  and  that  to  which  he  is  accredited,  it 
is  the  duty  of  the  latter  to  employ  the  means  at  its  disposal  to 
accord  the  minister  and  his  retinue  complete  protection  from  every 
form  of  violence,  as  well  as  from  marks  of  official  discourtesy,  and 
also,  to  facilitate  their  departure  from  its  territory  by  reasonable 
processes.^ 

When  a  minister  is  not  received  by  reason  of  its  failing  to  appear 
that  he  represents  any  lawful  government  of  the  State  from  which 
he  comes,  it  has  been  declared  that  diplomatic  privileges,  if  any, 
are  accorded  him  as  of  courtesy  rather  than  of  right.^  It  may  be 
doubted,  therefore,  whether  he  is  entitled  to  claim  exemption  from 
the  local  jurisdiction,  should  occasion  for  its  exercise  in  respect  to 
him  arise. 

1  Mr.  Root,  Secy,  of  State,  to  Mr.  Russell,  Minister  to  Venezuela,  April 
2,  1906,  For.  Rel.  1906,  II,  1456 ;  Dr.  Paul,  Venezuelan  Minister  of  Foreign 
Affairs,  to  Mr.  Sleeper,  American  Charge,  June  20,  1908,  For.  Rel.  1908,  823 ; 
Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Nabuco,  Brazilian  Ambassador,  Julv 
23,  1908,  id.,  828.  .  See,  also,  earlier  cases  of  M.  Pichon  (1805),  Moore,  Dig^, 
IV,  662,  citing  Dupont  v.  Pichon,  4  Dall.  321 ;  and  that  of  Mr.  Barrozo, 
Portuguese  Charge  at  Washington  (1829-1830),  Moore,  Dig.,  IV,  664-667. 

2  Mr.  Adams,  Secy  of  State,  to  Mr.  d'Anduaga,  Nov.  2,  1821,  MS.  Notes 
to  For.  Legs.,  Ill,  29,  Moore,  Dig.,  IV,  664. 

3  Mr.  Fish,  Secy,  of  State,  to  Gen.  Gorloff,  Dec.  1,  1871,  S.  Ex.  Doc.  5, 
42  Cong.,  2  Sess.,  26-27,  Moore,  Dig.,  IV,  667. 

^  Sir  E.  Goschen,  British  Ambassador  at  Berlin,  to  Sir  Edward  Grey,  British 
Foreign  Secretary,  Aug.  8,  1914,  respecting  the  efforts  of  the  German  Govern- 
ment to  protect  the  former  while  en  route  to  the  Dutch  frontier  after  the 
outbreak  of  war.  Misc.  No.  8  (1914),  Cd.  7445.  Compare  report  of  M.  Cam- 
bon,  French  Ambassador  at  Berlin,  to  M.  Doumergue,  French  Minister  for 
Foreign  Affairs,  Aug.  6,  1914,  narrating  annoyances  to  which  the  former  was 
subjected  by  German  authorities  in  the  course  of  his  departure  from  Ger- 
many, upon  the  outbreak  of  the  war,  Misc.  No.  15  (1914),  p.  142,  Cd.  7717. 

^  Mr.  Gushing,  Atty.-Gen.,  to  Mr.  McKeon,  Dec.  24,  1855,  H.  Ex.  Doc. 
103,  34  Cong.,  1  Sess.,  13;  Same  to  Same,  Dec.  27,  1855,  id.,  14,  Moore,  Dig., 
IV,  668-669. 

756 


CUSTOMS   DUTIES  [§  441 

g 
§  440.  Taxation. 

The  rule  observed  by  the  United  States  with  respect  to  the 
taxation  of  property  owned  by  a  foreign  government,  and  occupied 
as  its  mission,  is  to  accord  reciprocity  in  regard  to  exemptions 
from  general  taxation,  but  not  to  exempt  specially  such  property 
from  local  assessments,  such  as  water  rent  and  the  like,  unless  it  is 
definitely  understood  that  such  taxes  are  also  exempted  by  the 
foreign  government  upon  property  belonging  to  the  United  States, 
and  used  for  a  like  purpose  by  an  American  minister.^  The  policy 
to  relieve  from  taxation  property  so  owned  and  employed,  is  not 
applied  to  premises  rented  and  occupied  as  dwellings  by  foreign 
diplomatic  oflBcials  subordinate  to  the  head  of  a  mission.^ 

It  is  not  believed  that  a  foreign  minister  may  be  justly  subjected 
to  the  payment  of  a  personal  tax  by  the  State  to  which  he  is  ac- 
credited.^ The  levy  thereof  would  directly  interfere  with  the  free 
exercise  of  his  functions.  The  extent  to  which  members  of  his 
retinue,  of  the  several  classes  heretofore  described,  share  his  ex- 
emption may  be  fairly  ascertained  by  reference  to  the  effect  of 
the  levy  and  the  mode  of  collection  upon  the  minister  himself. 
If  remote  and  indirect,  as  in  the  case  of  a  person  in  his  private 
service,  and  not  subjected  to  local  process  within  the  precincts 
of  the  legation,  no  ground  for  objection  would  be  apparent.^ 

h 

§  441.    Customs  Duties. 

According  to  existing  regulations  of  the  Treasury  Department, 
the  privilege  of  free  entry  and  exemption  from  examination  is 

1  The  language  of  the  text  is  substantially  that  of  Mr.  Bayard,  Secy,  of 
State,  to  Mr.  Woolsey,  April  15,  1886,  who  declared  also:  "When  a  foreign 
legation  occupies  rented  property  in  this  country,  the  owner  of  the  premises 
is  not  exempted  from  the  payment  of  all  lawful  taxes."  159  MS.  Dom. 
Let.  622,  Moore,  Dig.,  IV,  670.  Also  Mr.  Fish,  Secv.  of  State,  to  Mr.  Stumm, 
May  28,  1873,  MS.  Notes  to  Prussian  Legation,  VIII,  484,  Moore,  Dig.,  IV, 
669 ;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Wallach,  July  5,  1867,  MS.  Dom. 
Let.  432,  Moore,  Dig.,  IV,  669. 

2  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Bayard,  Ambassador  to  Great  Brit- 
ain, No.  2,  May  29,  1893,  MS.  Inst.  Great  Britain,  XXX,  250,  Moore,  Dig., 
IV,  671. 

3  Oppenheim,  2  ed.,  I,  §  394,  p.  467. 

*  Mr.  Jackson,  Charge  at  Berlin,  to  Mr.  Hay,  Secy,  of  State,  April  13, 
1901,  For.  Rel.  1901,  172,  citing  despatches  of  Mr.  Coleman,  Charg6,  No. 
182,  of  Oct.  7,  1890,  and  Mr.  Phelps,  Minister  to  Germany,  No.  220,  of  Jan. 
13,  1891,  Moore,  Dig.,  IV,  672. 

See  Macartney  v.  Garbutt,  L.  R.  24  Q.  B.  368,  to  the  effect  that  a  British 
subject,  accredited  to  Great  Britain  by  a  foreign  government  as  a  member 
of  its  embassy,  is,  unless  received  by  the  British  Government  upon  the  ex- 

757 


§  441]       THE    RIGHTS   AND    DUTIES    OF   MINISTERS 

extended  to  the  baggage  and  effects  of  the  following  ofRcers,  their 
families  and  suites  :  foreign  ambassadors,  ministers  and  charges 
d'affaires,  and  also  to  those  secretaries,  and  naval,  military  and 
other  attaches  at  embassies  and  legations,  accredited  to  the  United 
States,  whose  governments  grant  reciprocal  privileges  of  free  entry 
to  American  officers  of  like  grade  accredited  thereto.^ 

It  is  doubtless  a  common  usage  of  international  intercourse 
that  to  the  head  of  a  mission  shall  be  conceded  the  privilege  of 
importation  of  effects  for  his  personal  or  official  use,  or  for  that 
of  his  immediate  family,  without  payment  of  customs  duties 
thereon. 2  In  1911,  it  was  announced  by  the  Department  of  State 
that  the  United  States  not  only  admits  the  baggage  and  personal 
effects  of  all  diplomatic  officers  from  the  heads  of  the  missions 
down  to  and  including  attaches  upon  their  first  arrival  in  the 
country,  but  also  accords  to  each  and  every  one  of  such  officers 
the  privilege  of  free  importation  of  goods  at  any  time.^    Such  a 

press  condition  that  he  should  be  subject  thereto,  exempt  from  the  local 
jurisdiction  of  his  own  country,  and,  therefore,  where  this  condition  has  not 
been  imposed  on  him  at  the  time  of  his  reception,  his  household  furniture  is 
privileged  from  seizure  for  non-payment  of  parochial  rates. 

'  "High  commissioners  and  consular  officers"  accredited  to  the  United 
States  are  also  included  in  the  list.  Instructions  of  Mr.  Curtis,  Assist.  Secv. 
of  the  Treasury  to  Collectors  of  Customs,  Oct.  19,  1911,  T.  D.  31934,  Treas- 
ury Decisions,  XXI,  No.  17,  p.  7.  Compare  Mr.  Spaulding,  Acting  Secy. 
of  the  Treasury,  No.  141,  Dec.  22,  1902,  Moore,  Dig.,  IV,  675 

See  Rev.  Gen.,  XV,  448-449,  respecting  a  circular  note  of  the  Norwegian 
Government,  Oct.  25,  1907,  extending  the  exemptions  from  customs  duties 
to  diplomatic  agents  other  than  heads  of  missions. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §§  58- 
61,  Moore,  Dig.,  IV,  675-676. 

'  Circular  Instructions  of  Mr.  Wilson,  Acting  Secy,  of  State,  to  Ameri- 
can Diplomatic  and  Consular  Officers,  Sept.  12,  1911. 

The  following  provisions  are  contained  in  the  Treasury  Department  Regu- 
lations of  1915 : 

"Art.  376.  Baggage.  —  The  privilege  of  free  entry  and  exemption  from 
examination  is  extended  to  the  baggage  and  other  effects  of  the  following  offi- 
cials, their  famihes,  suites  and  servants  : 

"Foreign  ambassadors,  ministers,  charges  d'affaires. 

"Secretaries,  and  naval,  military,  and  other  attaches  at  embassies  an^ 
legations,  high  commissioners,  and  consular  officers  accredited  to  this  Govern- 
ment or  en  route  to  and  from  other  countries  to  which  accredited  and  whose 
governments  grant  reciprocal  privileges  to  American  officials  of  like  grade  ac- 
credited thereto. 

"Similar  representatives  of  this  Government  abroad,  including  consular 
oflBcers,  returning  from  their  missions. 

"Other  high  officials  of  this  and  foreign  governments. 

"Applications  should  be  made  to  the  Department  of  State  for  the  free  entry 
of  the  baggage  of,  and  extension  of  courtesy  to,  all  foreign  ambassadors  and 
other  foreign  officers.  Application  should  also  be  made  ttirough  the  Depart- 
ment of  State  in  the  case  of  diplomatic  and  consular  officers  of  the  United 
States  returning  from  their  missions.  Other  high  officials  of  this  Government 
may,  however,  make  application  direct  to  the  Treasury  Department  for  the 
extension  of  courtesies. 

"In  the  absence  of  special  authorization  from  the  Department  prior  to  the 
arrival  of  any  of  the  persons  above  referred  to,  collectors  of  customs  may  ac- 

758 


POLICE    REGULATIONS  [§  442 

broad  extension  of  courtesies  and  privileges  may  be  fairly  regarded 
as  based  upon  the  principle  of  reciprocity.^ 

It  is  not  understood  that  amendatory  regulations  of  1920, 
contemplating  the  search  of  baggage  for  intoxicating  liquors,  in 
aid  of  the  enforcement  of  prohibition  laws,  was  in  fact  applied 
in  the  case  of  the  baggage  ot  foreign  diplomatic  officers. 

Exemptions  from  customs  duties,  however  justly  claimed  by 
American  diplomatic  officers,  are  not  believed  to  embrace  also 
municipal  octroi  duties  imposed  in  some  foreign  countries  upon 
articles  of  consumption.^ 

i 

§  442.   Police  Regulations. 

It  has  been  observed  that  the  right  of  the  State  to  which  he  is 
accredited,  to  prevent  a  minister  from  committing  a  hostile  act, 
was  well  understood  in  the  time  of  Grotius.^  This  principle  still 
has  its  applications.^    A  diplomatic  officer  is  expected  to  observe 

cord  the  pri\'-ileges  of  this  Article  to  them  upon  presentation  ol  their  credentials, 
or  by  otherwise  establishing  their  identity. 

"Collectors  will  keep  a  record  of  the  privileges  granted,  whether  the  sub- 
ject of  instructions  from  the  Department  or  not,  containing  the  name  of  the  per- 
son to  whom  granted,  his  rank  or  designation,  the  name  of  the  vessel  and  date 
of  arrival. 

"If  by  accident  or  unavoidable  delay  in  shipment,  the  baggage  or  other  ef- 
fects of  a  person  of  any  of  the  classes  mentioned  in  this  article  shall  arrive  after 
him,  the  same  may  be  passed  free  of  duty  upon  his  declaration,  without  exami- 
nation. 

"Art.  377.  Imported  articles.  —  Members  and  attaches  of  foreign  em- 
bassies and  legations  may  receive  articles  imported  for  their  personal  or  family 
use  free  of  duty  without  examination,  upon  the  Department's  instructions  in 
each  instance,  which  will  be  issued  only  upon  the  request  of  the  Department  of 
State. 

"Packages  bearing  the  official  seal  of  a  foreign  Government  will  be  ad- 
mitted to  free  entry  without  examination.  Costumes,  regalia,  and  other 
articles  for  the  official  use  of  diplomatic  or  consular  officers  of  a  foreign  Gov- 
ernment will  be  admitted  free  of  duty. 

"Collectors  will  take  charge  of  all  packages  addressed  to  diplomatic  officers 

of  foreign  nations  which    arrive  in  advance  of  the  receipt  of  instructions  for 

free  entry.     Notification  of  such  arrivals  should  be  sent  to  the  Secretary  of  the 

Treasury." 

.    1  This  seems  to  be  the  view  of  the  Department  of  State  indicated  in  the 

language  of  Instructions  of  1897  as  well  as  of  1911. 

2  Mr.  Olney,  Secy,  of  State,  to  Mr.  MacVeagh,  No.  144,  Jan.  20,  1896, 
MS.  Inst  Italy,  III,  102,  Moore,  Dig.,  IV,  676.  See  For.  Rel.  1903,  661- 
664,  respecting  the  erroneous  collection  of  an  alien  head  tax  from  the  Jap- 
anese Charge  d' Affaires  to  Mexico,  when  entering  the  United  States  en  route 
to  Japan. 

^  Jurisdictional  Immunities,  supra,  §§  4.33-434. 

*  Declares  Professor  Moore:  "The  theory  of  diplomatic  immunity  is  not 
that  the  diplomatic  officer  is  freed  from  the  restraints  of  the  law  and  exempt 
from  the  duty  of  observing  them,  but  only  that  he  can  not  be  punished  for 
his  failure  to  respect  them.  The  punitive  power  of  the  State  can  not  be  di- 
rectly enforced  against  him.  It  will  hardly  be  denied,  however,  that  it  is  his 
duty  to  respect  the  laws  of  the  country  in  which  he  resides,  and  that  he  rnay 
in  many  conceivable  cases  be  prevented  from  doing  unlawful  acts,  for  which, 

759 


§442]      THE   RIGHTS   AND   DUTIES   OF   MINISTERS 

local  police  regulations  designed  for  the  good  order  and  safety  of 
the  public,  such  as  those  regulating  traffic  on  the  highway.^  Im- 
munity from  punishment  for  the  violation  thereof  by  no  means 
implies,  "that  actual  coercion  might  not  be  employed  in  pro- 
tecting the  public  from  injury,  as  by  running  down  persons  in 
the  street."  ^  It  is  hardly  to  be  anticipated,  however  that  a 
minister  accredited  to  the  United  States,  if  conscious  of  the  nature 
of  his  mission  and  of  the  likelihood  of  rendering  it  abortive  by 
contempt  for  law,  would  fail  to  take  the  customary  precautions 
to  respect  regulations,  or  would  intentionally  give  occasion  to 
municipal  authorities  to  hold  him  in  restraint. 

5 
§  443.   Diplomatic  Asylum. 

The  growth  of  international  law  has  been  contemporaneous 
with  and  dependent  upon  that  also  of  the  recognition  of  the  su- 
premacy of  the  territorial  sovereign  over  a  well-defined  domain 
regarded  as  its  own.  That  law  by  reason  of  its  relation  to  this 
principle  has  waged  persistent  warfare  against  whatever  has  served 
to  thwart  it.  One  of  its  most  persistent  enemies  was  robust  and 
mature  even  before  the  days  of  Grotius.  With  the  establishment 
of  permanent  missions,  ambassadors  took  under  their  protection 
large  numbers  of  persons,  oftentimes  of  the  worst  character,  to 
whom  was  thereby  afforded  an  asylum.^  The  early  practice  whereby 
an  ambassador  possessed  a  so-called  franchise  des  qvartiers,  covering 
a  certain  area  in  the  city  of  his  abode,  offered  opportunity  for  the 
establishment  of  a  veritable  colony  of  refugees,  dangerous  to  the 
safety  of  the  State  whose  justice  they  defied.'*    Thus  an  inevitable 

if  he  were  allowed  to  commit  them,  he  could  not  be  punished.  This  dis- 
tinction is  peculiarly  appUcable  to  police  regulations,  made  for  the  purpose  of 
assuring  the  public  health  and  safety."     Dig.,  IV,  678. 

1  Mr.  Hay,  Secy,  of  State,  to  Mr.  Wight,  Feb.  17,  1900,  243  MS.  Dom.  Let. 
104,  Moore,  Dig.,  IV,  679;  Mr.  Rives,  Assist.  Secy,  of  State,  to  Mr.  Childs, 
June  21,  1888,  168  MS.  Dom.  Let.  651,  Moore,  Dig.,  IV,  678;  Opinion  of  Mr. 
Knox,  Atty.-Gen.,  Jan.  2,  1902,  23  Ops.  Attys.-Gen.,  608,  Moore,  Dig.,  IV, 
679 ;  Circular  of  Department  of  State,  Jan.  17,  1903,  concerning  a  coach- 
man's badge  for  diplomatic  carriages. 

2  Moore,  Dig.,  IV,  678. 

^  Attention  is  called  to  the  valuable  commentary  on  the  "Right  of  Asy- 
lum"; "Early  Diplomatic  Privileges  and  their  Decadence";  "Survivals  of 
Asylum  in  Europe";  and  "Diplomatic  Asylum  in  International  Law",  in 
Moore,  Dig.,  II,  755-770,  775-781;  also  "Asylum  in  Legations  and  Consu- 
lates" by  the  same  author,  New  York,  1892,  reprinted  from  Pol.  Sc.  Quar., 
VII,  nos.  1,  2  and  3. 

*  "The  privileges  accorded  to  ambassadors  led  to  many  scandalous  abuses 
in  former  times,  none  of  them  greater  than  those  which  arose  out  of  the  in- 
violability of  their  residences,  or  what  was  technically  known  as  the  franchise 
de  I'hotel.     Whole  quarters  of  populous  cities  —  Rome,  Venice,  Madrid,  and 

760 


DIPLOMATIC   ASYLUM  [§  443 

conflict  ensued ;  the  issue  was  never  in  doubt  so  long  as  society 
was  convinced  that  the  maintenance  of  justice  demanded  respect 
in  fact  as  well  as  theory  for  the  supremacy  of  each  State  within 
its  own  domain.  The  practice,  nevertheless,  died  slowly.  It 
did  not  completely  disappear  from  Europe  until  late  in  the  nine- 
teenth century.  While  it  never  existed  in  the  United  States, 
traces  possibly  still  linger  in  parts  of  Spanish  America.^ 

The  granting  of  asylum  was  merely  the  abuse  of  a  custom  in 
itself  not  unreasonable,  and  of  very  early  origin.  The  principle 
that  called  for  the  inviolability  of  the  person  of  an  ambassador 
necessitated  also  the  inviolability  of  his  house.  He  could  not 
exercise  his  functions  freely  and  independently  unless  the  latter 
were  exempt  from  local  jurisdiction.  Hence  there  was  general 
acquiescence  that  both  should  enjoy  immunity.  To  this  extent 
the  existing  usage  was  accepted  without  resistance,  and  remains 
to-day  unchallenged.  The  nature  of  the  exemption  was  not, 
however,  always  clearly  understood ;  while  the  phrase  employed 
to  describe  it  —  extraterritoriality  —  led  to  confusion  of  thought.^ 

Tlie  ground  occupied  by  an  embassy  is  not  in  fact  the  territory 
of  the  foreign  State  to  which  the  premises  belong  through  posses- 
sion or  ownership.^  The  lawfulness  or  unlawfulness  of  acts  there 
committed  is  determined  by  the  territorial  sovereign.  If  an 
attache  commits  an  offense  within  the  precincts  of  an  embassy, 
his  immunity  from  prosecution  is  not  because  he  has  not  violated 
the  local  law,  but  rather  for  the  reason  that  the  individual  is  ex- 
empt from  prosecution.  If  a  person  not  so  exempt,  or  whose 
immunity  is  waived,  similarly  commits  a  crime  therein,  the  terri- 
torial sovereign,  if  it  secures  custody  of  the  offender,  may  subject 
him  to  prosecution,  even  though  its  criminal  code  normally  does 
not  contemplate  the  punishment  of  one  who  commits  an  offense 
outside  of  the  national  domain.^     It  is  not  believed,  therefore, 

Frankfort,  during  the  assembly  for  the  election  of  the  emperor  —  were  taken 
possession  of  by  foreign  ministers  under  this  guise.  By  the  simple  expedient 
of  placing  the  arms  of  their  sovereigns  over  the  doors  of  as  many  houses  as 
they  thought  proper  to  hire,  and  letting  them  out  as  asylums  for  offenders 
against  the  laws  of  the  countries  in  which  they  dwelt,  enormous  profits  were 
realised."     Lorimer's  Institutes,  I,  250. 

1  See  documents  in  Moore,  Dig.,  II,  781-841,  indicating  the  practice  in 
various  Spanish-American  States,  and  the  relation  of  the  United  States 
thereto;  also  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897), 
§  51 ;  Barry  Gilbert,  "The  Practice  of  Asylum  in  Legations  and  Consulates 
of  the  United  States",  Am.  J.,  Ill,  562;  Sir  E.  Satow,  Diplomatic  Practice, 
I,  Chap.  XX. 

2  Exemptions  from  jurisdiction,  in  General,  supra,  §  244-245. 
'  Dana's  Wheaton,  Dana's  Note  No.  129. 

*  Case  of  Nitchencoff,  a  Russian  subject  who  committed  an  assault  on  one 
de  Balsh,  in  the  house  of  the  Russian  Ambassador  in  Paris,  Moore,  Dig., 

761 


§  443]      THE    RIGHTS  AND   DUTIES   OF   MINISTERS 

that  an  ambassador  himself  possesses  the  right  to  exercise  juris- 
diction, contrary  to  the  will  of  the  State  of  his  sojourn,  even  within 
his  embassy  with  respect  to  acts  there  committed.^  Nor  is  there 
apparent  at  the  present  time  any  tendency  on  the  part  of  States 
to  acquiesce  in  his  exercise  of  it. 

Should  a  public  minister  endeavor  to  afford  asylum  within  his 
official  residence  to  fugitives  from  local  justice,  the  territorial 
sovereign  might  with  reason  employ  coercive  measures  to  check 
the  continuance  of  the  abuse  of  the  diplomatic  privilege.  The 
premises  might  be  surrounded  by  a  cordon  of  police  and  means 
of  egress  and  ingress  effectually  blocked.^ 

It  is  not  believed  that  at  the  present  time  within  the  domain 
of  any  enlightened  State  exercising  control  and  duly  administer- 
ing justice,  a  foreign  minister  should  endeavor  to  resist  the  demand 
of  local  authorities  for  the  surrender,  for  purposes  of  prosecution, 
of  any  person  charged  with  crime,  who  is  not,  by  reason  of  some 
connection  with  the  mission,  to  be  deemed  exempt  from  the  juris- 
diction of  the  State. 

Within  recent  years  the  Department  of  State  has  made  it  clear 
that  the  United  States  does  not  recognize  a  right  of  asylum.^     It 

II,  778,  citing  Solic.  Journal,  X,  56,  Nov.  18,  1865 ;  also  Mr.  Jackson,  Charge 
at  Berlin,  to  Mr.  Hay,  Secy,  of  State,  July  5,  1899,  concerning  the  prosecution 
by  German  authorities  of  a  former  servant  of  French  nationality  of  the  Span- 
ish Ambassador  at  Berlin,  on  a  charge  of  assault,  committed  within  the  em- 
bassy. For.  Rel.  1899,  318,  Moore,  Dig.,  II,  778-779.  In  this  case  it  was 
held  that  the  court  had  jurisdiction. 

1  "  Heffter  states  the  law  as  it  exists  at  the  present  day,  when  he  says  that 
it  is  only  in  Turkey  and  other  non-Christian  States  that  foreign  ministers 
are  invested  with  the  right  to  decide  upon  disputes  among  their  countrymen 
or  even  among  the  members  of  their  suites.  This  view  is  entirely  accepted 
by  Lawrence,  who,  in  his  invaluable  edition  of  Wheaton,  says  that  the 
proposition  in  the  latter's  text  '  seems  to  have  been  transferred  from  one  ele- 
mentary treatise  to  another  without  due  examination."  Prof.  Moore,  in 
Dig.,  II,  777,  citing  Lawrence's  Wheaton,  ed.  186.3,  note  133.  See,  also.  Hall, 
6  ed.,  177,  note  1.  Compare  the  early  Case  of  the  Due  de  SuUy,  Ward,  Hist., 
11,316. 

2  See  case  of  the  arrest  and  detention  by  the  Chinese  Legation  at  London 
of  a  Chinaman  named  Sim  Yat  Sen,  in  1887,  and  the  steps  taken  by  the  British 
Government  to  obtain  his  release,  Moore,  Dig.,  IV,  555,  based  upon  a  des- 
patch from  London  in  the  New  York  Evening  Post  of  Oct.  23,  1896,  and  also 
quoting  a  public  letter  of  Professor  Holland  respecting  the  case  in  the  New  York 
Sun  of  Nov.  8,  1896.  Also  the  well-known  case  of  the  Duke  of  Ripperda.  a 
Spanish  Minister  of  Foreign  Affairs,  who,  in  1726,  took  refuge  in  the  British 
Embassy  at  Madrid,  and  whose  seizure  was  nevertheless  there  effected  by 
Spanish  officers.  Martens,  Causes  Celebres,  I,  174-209,  Moore,  Dig.,  II,  765- 
766 ;  also  the  case  of  Springer,  a  native  of  Russia  living  in  Sweden,  who  after 
conviction  for  crime  escaped  from  prison  and  took  refuge  in  the  British  Em- 
bassy at  Stockholm,  and  whose  surrender  was  obtained  by  coercive  measures 
on  the  pfirt  of  Sweden,  Martens,  Causes  Celebres,  I,  326-358,  Moore,  Dig., 
11,766.  '       ^' 

5  Mr.  Root,  Secy,  of  State,  in  a  communication  to  Mr.  Furniss,  Minister 
to  Haiti,  April  11,  1908,  declared:    "I  have  to  say  that  previous  instruc- 

762 


IN   GENERAL  [§  444 

may  be  obsen^ed  that  in  1911,  the  American  Charge  d'Aff aires  at 
Peking  was  authorized,  in  pursuance  of  his  request,  to  afford  at 
his  discretion  a  temporary  refuge  where  such  was  necessary  to 
preserve  innocent  human  Hfe.^  The  indisposition  of  the  Depart- 
ment of  State  to  deny  temporary  shelter  to  a  person  whose  hfe 
may  be  threatened  by  mob  violence  in  a  country  where  disorder 
prevails,  does  not,  however,  indicate,  as  has  been  definitely  an- 
nounced, that  the  United  States  countenances  "any  attempt 
knowingly  to  harbor  offenders  against  the  laws  from  the  pursuit 
of  the  legitimate  agents  of  justice."  ^ 

6 

THE  FUNCTIONS   OF  A  MINISTER 

a 
§  444.   In  General. 

The  function  of  a  minister  is  to  promote  the  good  relations  be- 
tween his  own  State  and  that  to  which  he  is  accredited.^  His 
usefulness  ceases,  therefore,  if  for  any  reason  he  becomes  persona 
non  grata  to  the  government  of  the  latter,  or  in  case  enmity  be- 
tween the  two  countries  banishes  the  desire  for  friendship  and 
terminates  diplomatic  relations. 

tions  have  made  it  clear  that  this  Government  does  not  recognize  the  so- 
called  right  of  asylum.  Recent  conditions  prevented  that  policy  from  being 
carried  out  with  regard  to  refugees  who  were  then  actually  under  shelter. 

"Now  that  the  American  legation  and  consulates  have  been  cleared  of 
refugees,  you  will  make  it  distinctly  known  that  no  more  Haitian  refugees 
will  be  admitted  to  shelter  by  you  or  your  subordinates  and  that  no  pre- 
text will  be  afforded  for  reawakening  the  question  of  asjdum  so  far  as  the 
Government  of  the  United  States  is  concerned."  For.  Rel.  1908,  435.  See, 
also,'Raymond  Robin,  "Le  droit  d'asile  dans  les  legations  et  ses  consulats  etrangers 
et  les  negotiations  pour  sa  suppression  en  Haiti",  Rev.  Gen.,  XV,  461. 

'  Mr.  Knox,  Secy,  of  State,  to  the  American  Charge  d' Affaires  at  Peking, 
Nov.  10,  1911,  For.  Rel.  1912,  174.  This  communication  appeared  to  be  in 
response  to  a  telegram  from  the  Legation  declaring  that  asylum  had  been  asked 
by  the  Emperor  and  Empress  Dowager,  which  the  Charge  strongly  urged 
be  granted.     Id. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  51. 
Also  Mr.  Wilson,  Acting  Secy,  of  State,  to  the  Secy,  of  the  Navy,  Oct.  23, 
1912,  For.  Rel.  1912,  860. 

It  may  be  noted  that  Mr.  Maginnis,  American  Minister  at  La  Paz,  stated 
in  a  communication  to  the  Department  of  State,  July  16,  1920,  that  in  the 
course  of  the  revolution  in  Bolivia,  all  the  Legations  in  La  Paz,  except  the 
French  and  Chilean,  had  harbored  refugees.  Dept.  of  State,  communique 
for  the  Press,  July  19,  1920,  No.  4.  See,  also,  communique  of  July  15,  1920, 
No.  2,  stating  that  the  American  Legation  reported  that  President  Guerra 
and  certain  others  had  taken  refuge  in  the  Legation. 

3  See,  generally,  Bonfils-Fauchille,  7  ed.,  §§  681-683;  also  Henrique  C.  R. 
Lisboa,  Les  fonctions  diplomatiques  en  temps  de  paix,  Santiago  de  Chile,  1908. 

Also  F.  Van  Dyne,  Our  Foreign  Service,  92-93,  103-105;  Charlemagne 
Tower,  Essays  Political  and  Historical,  1914,  55-57. 

763 


§  444]     THE    RIGHTS  AND   DUTIES   OF   MINISTERS 

In  the  fulfillment  of  his  mission  an  envoy  finds  that  his  duties 
generally  possess  a  threefold  aspect.  They  concern,  primarily, 
what  pertains  directly  to  his  own  country  as  a  whole,  such  as  the 
negotiation  of  treaties  or  the  fostering  of  its  political  interests. 
They  relate,  secondly,  to  the  welfare  of  private  individuals,  com- 
monly and  chiefly  that  of  his  own  countrymen,  who  are  within 
the  State  of  his  sojourn.  They  have  to  do,  thirdly,  with  the  special 
and  technical  requirements  peculiar  to  his  diplomatic  office. 


§  445.   Representation  in  Behalf  of  His  State  as  a  Whole. 

In  the  promotion  of  friendly  relations,  it  is  the  duty  of  a  minis- 
ter to  make  himself  familiar  with  any  misapprehension,  especially 
in  official  places,  respecting  the  attitude  of  his  own  State  in  regard 
to  matters  concerning  that  to  which  he  is  accredited.  To  banish 
needless  causes  of  friction  must  be  his  constant  endeavor.  To 
that  end  he  should  be  alert  to  ascertain  and  make  known  to  his 
government  the  exact  position  of  the  State  to  which  he  is  accredited 
with  respect  to  any  matters  giving  rise  to  controversy  with  his 
own  country.^  In  so  doing  he  should  strive  to  reflect  with  accuracy 
the  nature  of  both  official  and  popular  opinion,  and  to  gauge  with 
certainty  the  temper  of  each. 

In  time  of  war  a  diplomatic  officer  of  a  belligerent  power  in  a  neu- 
tral State  is  necessarily  burdened  with  such  a  task.  It  becomes  his 
duty  not  only  to  advise  his  government  with  regard  to  the  nature 
of  possible  complaints  of  its  conduct  as  a  belligerent,  but  also  to 
inform  it  with  candor  as  to  the  extent  and  significance  of  popular 
hostility  which  such  conduct  may  have  produced  in  the  country 
of  his  sojourn.^     . 

To  negotiate  treaties  is  oftentimes  the  duty  of  a  minister.  How- 
ever complete  his  instructions  and  however  closely  he  may  be  in 
communication'  with  his  government,  he  should  possess  exact  knowl- 
edge not  only  of  the  nature  of  and  reasons  for  what  he  demands, 
but  also  of  the  probable  effect  of  compliance  upon  the  other 
contracting  party.     With  its  existing  conventional  arrangements 

1  Instructions  of  Mr.  Hay,  Secy,  of  State,  to  Mr.  Beaupr6,  Minister  to 
Colombia,  No.  15,  June  2,  1903,  For.  Rel.  1903,  145. 

^  It  may  be  doubted  whether,  in  the  experience  of  the  United  States  since 
its  Declaration  of  Independence,  any  minister  representing  it  as  a  belligerent 
at  the  capital  of  a  neutral  State  has  responded  with  greater  fidelity  and  suc- 
cess to  the  complicated  obligations  incidental  to  his  office,  than  did  the  late 
Charles  Francis  Adams  as  American  Minister  to  Great  Britain  in  the  days  of 
the  Civil  War.  See,  in  this  connection.  The  Education  of  Henry  Adams 
(by  himself),  Boston,  1918,  Chaps.  VIII  and  IX. 

764 


PROTECTION  [§  446 

dealing  with  the  same  matter,  he  should  have  familiarity ;  and, 
likewise,  with  whatsoever  arguments  it  may  have  opposed  to 
similar  demands  made  by  other  States.  Technical  skill  in  the 
drafting  of  public  agreements,  clear  understanding  of  the  sense 
in  which  particular  terms  are  employed,  and  a  readiness  to  avoid 
the  use  of  expressions  likely  to  result  in  divergent  constructions, 
are  vital  to  the  success  of  a  minister  who  is  burdened  with  the 
conclusion  of  a  treaty.^ 

In  case  proposed  legislation  appears  to  disregard  the  terms  of 
an  agreement  already  concluded  with  his  country,  it  becomes  the 
duty  of  the  minister  to  ascertain  the  fact,  and,  pursuant  to  in- 
structions, to  lodge  formal  protest  with  the  State  to  which  he  is 
accredited. 

It  is  the  constant  duty  of  a  minister  to  watch  political  and 
economic  or  other  movements  in  the  State  of  his  official  sojourn, 
and  to  observe  intelligently  whatsoever  significance  they  possess 
in  relation  to  his  own.  Such  conduct  is  not  to  be  deemed  neces- 
sarily adverse  to  the  welfare  of  the  country  to  which  he  is  accred- 
ited.^ The  stability  of  amicable  relations  between  States  depends, 
in  large  degree,  upon  the  completeness  with  which  their  problems 
and  aspirations  are  mutually  understood  and  respected.  Should, 
however,  a  minister  employ  improper  means  to  gain  a  knowledge 
of  local  policies,  his  conduct,  if  known,  would  serve  to  impair  his 
usefulness,  and  possibly  lead  to  a  demand  for  his  recall,  or  even 
to  his  dismissal. 


Representation  of  His  Countrymen 

(1) 
§  446.   Protection. 

A  minister  is,  in  a  broad  sense,  the  representative  of  his  country- 
men in  the  State  of  his  sojourn.  In  so  far  as  their  protection 
necessitates  interposition  with  the  Foreign  Office  or  Department 
of  State,  he  is  their  national  spokesman.^    In  other  respects  the 

1  Extradition.  The  duties  of  diplomatic  officers  in  relation  to  the  extra- 
dition of  criminals  are  considered  elsewhere.  See  Extradition,  Requisition, 
supra,  §  324 ;  also  Authentication  of  Documentary  Evidence  of  the  De- 
manding Government,  supra,  §  335,  p.  599,  note  1. 

2  Oppenheim,  2  ed.,  I,  §  380,  p.  454  ;  Bonfils-Fauchille,  7  ed.,  §  682. 

3  Mr.  Fish,  Secy,  of  State,  to  Mr.  Mantilla,  Spanish  Minister,  Feb.  16, 
1875,  MS.  Notes  to  Spain,  IX,  345,  Moore,  Dig.,  IV,  694. 

Passports.  Concerning  the  issuance  of  passports  by  American  diplo- 
matic officers,  see,  generally,  under  Passports,  supra,  §  399. 

Judicial   Functions.     Concerning   the   judicial   functions   of   American 

765 


§446]      THE    RIGHTS  AND   DUTIES   OF  MINISTERS 

protection  of  such  individuals  is  believed  to  pertain  to  the  con- 
sular rather  than  to  the  diplomatic  service.^  A  foreign  minister 
accredited  to  the  United  States  could  not,  for  example,  with  pro- 
priety complain  of  the  conduct  or  invoke  the  aid  of  any  official, 
whether  Federal  or  State,  save  through  the  medium  of  the  Depart- 
ment of  State  .^ 

(2) 

§  447.    Support  of  Private  Interests. 

American  diplomatic  officers  are  cautioned  generally  against 
furnishing  support  to  the  private  interests  of  their  countrymen. 
The  former  are  instructed  to  espouse  no  claim  founded  in  con- 
tract without  specific  advices.  Previous  instructions  are  also  re- 
quired in  order  to  justify  interposition  in  behalf  of  an  American 
whose  claim  is  founded  in  tort,  '  unless  the  person  of  the  claimant 
be  assailed  or  there  be  pressing  necessity  for  action  in  his  behalf" 
before  communication  with  the  Department  of  State  is  possible.^ 

Such  officers,  have,  however,  not  infrequently  been  author- 
ized to  assist  reputable  representatives  of  American  concerns, 
without  endorsing  their  financial  standing,  and  without  es- 
pousing the  claim  of  any  particular  individual  or  firm  to  the 
exclusion  of  others,  to  obtain  the  same  opportunity  and  facilities 
for  submitting  proposals,  tendering  bids,  and  obtaining  contracts 
as  might  be  enjoyed  by  business  houses  of  any  other  foreign 
country."*  It  has  been  the  practice  for  diplomatic  assistance  to 
originate  in  the  Department  of  State,  where,  according  to  Secre- 

diplomatic  officers  in  certain  oriental  and  other  countries,  see  Extraterri- 
torial Jurisdiction,  Legislation  of  the  United  States,  supra,  §  264. 

1  See,  for  example,  Art.  VIII,  Consular  Convention  with  Germany,  Dec. 
11,  1871,  Malloy's  Treaties,  I,  552. 

2  Secretary  of  State  as  Organ  of  Correspondence,  supra,  §  410. 

A  possible  exception  to  the  statement  in  the  text  is  to  be  noted  in  cases 
where  a  diplomatic  officer,  through  the  medium  of  counsel,  files  suggestions 
as  an  amicus  curiae  in  a  court  with  respect  to  a  matter  such  as  the  requisi- 
tion by  his  government  of  a  ship  which  has  been  libeled.  See,  for  example. 
The  Adriatic,  258  Fed.  902.     But  see,  supra,  p.  443. 

2  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  174, 
Moore,  Dig.,  IV,  566 ;  Mr.  Bayard,  Secy,  of  State,  to  Miss  Heald,  July  9, 
1886,  160  MS.  Dom.  Let.  666,  Moore,  Dig.,  IV,  566. 

"The  rule  that  a  diplomatic  agent  is  not  expected  to  attend  to  private  pro- 
fessional matters,  such  as  taking  testimony,  does  not  apply  to  the  usual  offi- 
cial action  to  facilitate  the  taking  of  testimony  by  letters  rogatorv."  Mr. 
Olney,  Secy,  of  State,  to  Mr.  Thomas,  No.  37,  Jan.  10,  1896,  MS.  Inst.  Vene- 
zuela, IV,  377,  Moore,  Dig.,  IV,  567. 

*  Mr.  Olney,  Secy,  of  State,  to  Mr.  Denby,  Minister  to  China,  No.  1376, 
Dec.  19,  1896,  For.  Rel.  1897,  56,  Moore,  Dig.,  IV,  568;  Mr.  Sherman, 
Secy,  of  State,  to  Same,  No.  1404,  March  8,  1897,  For.  Rel.  1897,  59,  Moore, 
Dig.,  IV,  568;  see,  also,  Mr.  Knox,  Secy,  of  State,  to  Mr.  Straus,  Ambassa- 
dor to  Turkey,  Nov.  1,  1909,  For.  Rel.  1909,  595. 

766 


GOOD    OFFICES   FOR    CERTAIN   ALIENS  [§449 

tary  Bayard,  the  opportunity  for  estimating  the  nature  of  a  pro- 
posed enterprise  and  the  responsibility  of  those  planning  to  em- 
bark upon  it  could  best  be  formed.^  More  recently,  however, 
the  Department  has,  at  least  in  one  instance,  sought  to  rely  upon 
the  discretion  of  the  diplomatic  officer,  as  to  the  propriety  of  his 
undertaking  to  support  the  claims  of  applicants  for  contracts ; 
and  has  endeavored  to  eliminate,  when  possible,  delay  necessarily 
occasioned  by  forwarding  to  Washington  applications  for  assist- 
ance in  the  case  of  persons  known  to  be  responsible,  or  to  be  act- 
ing in  behalf  of  reputable  concerns.^ 

(3) 

§  448.   Presentations  at  Court. 

If  any  of  his  countrymen  are  to  be  presented  at  the  court  of  the 
State  of  his  sojourn,  the  minister  is  the  medium  of  presentation. 
Unwilling  to  encourage  invidious  social  distinctions,  and  reluctant 
also  to  burden  unduly  an  American  diplomatic  officer,  the  Depart- 
ment of  State  leaves  to  his  personal  discretion  the  choice  of  per- 
sons to  be  presented,  subjecting,  however,  the  exercise  of  this 
social  privilege  to  the  custom  and  wishes  of  the  local  court.^ 


Good  Offices  for  Nationals  of  Third  States 

(1) 

§  449.  In  Countries  where   They  Lack  Diplomatic  Rep- 
resentation. 

A  government  is  sometimes  requested  to  permit  its  minister 
to  exercise  his  good  offices  for  the  purpose  of  protecting  nationals 
of  a  third  State  which  is  without  diplomatic  representation  in 
the  country  of  his  sojourn.    The  acceptance  of  this  function  by 

1  See,  for  example,  Mr.  Bayard,  Secv.  of  State,  to  Mr.  Denby,  Minister 
to  China,  No.  274,  Dec.  15,  1887,  MS.  Inst.  China,  IV,  334,  Moore,  Dig., 
IV,  567. 

^  Mr.  Knox,  Secy,  of  State,  to  Mr.  Straus,  Ambassador  to  Turkey,  Nov. 
1  1909  For.  Rel.  1909  595. 
'  3  Mr!  Bayard,  Secy.'of  State,  to  Mr.  Magee,  No.  120,  Jan.  12,  1889,  MS. 
Inst.  Sweden  and  Norway,  XV,  189,  Moore,  Dig.,  IV,  572;  Mr.  Olney, 
Secy,  of  State,  to  Mr.  Johnson,  March  6,  1896,  208  MS.  Dom.  Let.  358,  Moore, 
Dig.,  IV,  572;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Dayton,  Feb.  3,  1862,  S. 
Ex.  Doc.  19,  37  Cong.,  2  Sess.,  Moore,  Dig.,  IV,  570. 

Respecting  presentations  at  the  court  of  Italy,  see  For.  Rel.  1898,  410- 
411. 

767 


§449]      THE    RIGHTS   AND   DUTIES   OF   MINISTERS 

an  American  diplomatic  ofHcer  is  dependent  upon  the  approval  of 
the  Department  of  State  as  well  as  of  that  of  the  State  to  which 
he  is  accredited.^  He  acts  in  an  unofficial  capacity,  and  not  as 
the  diplomatic  representative  of  the  State  whose  nationals  he  en- 
deavors to  protect.^  While  the  officer  is  said  to  be  the  agent  of 
such  State,  and  responsible  to  it  rather  than  to  the  United  States 
in  the  exercise  of  his  good  offices,^  he  does  not  report  to  the 
former  or  take  its  orders.  "His  communication  with  it  is  indi- 
rectly effected  through  his  own  government."  ^ 

An  American  minister  is  expected  to  examine  with  care  such 
complaints  as  are  laid  before  him,  and  to  exercise  discretion  as 
to  their  treatment.  It  is  said  that  no  case  requiring  formal  or 
informal  negotiation  with  the  government  to  which  he  is  accred- 
ited should  be  taken  up  unless  with  knowledge  that  such  inter- 
position is  requested  by  the  government  of  the  State  of  which 
the  complainant  is  a  national,  "permitted  by  the  United  States, 
and  acquiesced  in  by  the  local  government."  ^ 

1  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  172, 
Moore,  Dig.,  IV,  584.  See,  also,  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr. 
Leishman,  Minister  to  Turkey,  Aug.  7,  1901,  For.  Rel.  1901,  523,  Moore, 
Dig.,  IV,  587. 

That  a  diplomatic  officer  of  the  United  States  cannot  without  congressional 
sanction  accept  a  diplomatic  commission  from  another  State,  even  though  he 
is  not  prohibited  from  rendering  a  friendly  service  to  it  so  long  as  he  does  not 
become  an  officer  of  it,  see  Opinion  of  Mr.  Akerman,  Atty.-Gen.,  Nov.  23, 
1871,  13  Ops.  Attys.-Gen.,  537,  Moore,  Dig.,  IV,  585. 

2  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Clay,  Minister  to  Peru,  No.  23,  Dec. 
28,  1854,  MS.  Inst.  Peru,  XV,  150,  Moore,  Dig.,  IV,  595;  Mr.  Bayard, 
Secy,  of  State,  to  Maj.  Kloss,  Swiss  Charge,  July  1,  1887,  For.  Pel.  1887,  1076, 
Moore,  Dig.,  IV,  594;  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Young,  Minister 
to  Guatemala,  Aug.  18,  1894,  For.  Rel.  1894,  331,  Moore,  Dig.^  IV,  589; 
Mr.  Hay,  Secy,  of  State,  to  Mr.  Bridgman,  Minister  to  Bolivia,  Jan.  4,  1900, 
For.  Rel  1899,  109,  Moore,  Dig.,  IV,  592 ;  Mr.  Bacon,  Acting  Secv.  of  State, 
to  Mr.  Jackson,  Minister  to  Greece  (No.  146  Greek  Series),  March  13,  1907, 
For.  Rel.  1907,  I,  583 ;  Mr.  Knox,  Secy,  of  State,  to  Mr.  Sherrill,  Minister 
to  the  Argentine  RepubUc,  July  23,  1909,  For.  Rel.  1909,  11. 

'  Mr.  Fish,  Secy,  of  State,  to  Mr.  WilUamson,  Minister  to  Guatemala, 
No.  83,  June  18,  1874,  MS.  Inst.  Costa  Rica,  XVII,  179,  Moore,  Dig.,  IV, 
588 ;  Instructions  to  the  Diplomatic  Officers  of  the  United  States  (1897), 
§  172. 

■»  Mr.  Hay,  Secy,  of  State,  to  Mr.  Bridgman,  Minister  to  Bolivia,  Jan.  4, 
1900,  For.  Rel.  1899,  109,  Moore,  Dig.,  IV,  592. 

^  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Greece 
(No.  146  Greek  Series),  March  13,  1907,  For.  Rel.  1907,  I,  583.  Declared 
Mr.  Loomis,  Acting  Secy,  of  State,  to  Mr.  Combs,  Minister  to  Guatemala, 
in  the  course  of  a  communication  of  March  15,  1903:  "In  making  repre- 
sentations in  behalf  of  any  aggrieved  Chinese  sulajects  who  may  seek  the  le- 
gation's interposition  you  should,  by  way  of  good  offices,  endeavor  to  secure 
for  them  the  same  degree  of  protection  from  tort  as  you  could  demand  of 
right  for  an  American  citizen  similarly  circumstanced.  Your  discretion 
does  not  extend  to  the  presentation  of  claims.  If  any  such  are  preferred 
by  Chinese  subjects  you  will  report  them  to  the  Department,  which  will 
bring  them  to  the  knowledge  of  the  Chinese  Government."  For.  Rel.  1903, 
573.     With  respect  to  the  presentation  by  the  American  Minister  at  Caracas 

768 


NATIONALS  OF  BELLIGERENT  STATES  [§  450 

(2) 
§  450.    Nationals  of  Belligerent  States. 

When  by  reason  of  war  diplomatic  relations  between  two  States 
are  terminated,  the  minister  of  a  third  State  is  commonly  called 
upon  to  protect  the  interests  of  nationals  of  the  one  belligerent 
within  the  domain  of  that  other  to  which  he  is  accredited.^  An 
American  diplomatic  officer,  when  accepting  such  a  function,  acts 
unofficially.  His  duties  call  for  the  exercise  of  sound  judgment, 
personal  courage,  and  the  utmost  care  to  avoid  the  danger  of 
weakening  the  neutral  relationship  of  his  own  country  towards 
either  belligerent.^  He  may  be  burdened  with  the  task  of  securing 
permission  for  and  otherwise  facilitating  the  departure  of  belliger- 
ent nationals  from  the  territory  belonging  to  the  State  of  his 
sojourn.^  He  may  render  assistance  also  to  their  departing  min- 
ister and  his  staff  in  quitting  the  country.'^ 

On  such  occasions  there  is  also  entrusted  to  the  officer  protec- 
tion of  the  archives  and  other  property  of  the  belligerent  State 
whose  nationals  are  placed  within  his  care.^  It  may  request  him 
to  display  his  national  flag  over  the  building  of  its  embassy  or 
legation,  should  the  necessity  or  desirability  of  the  display  of 
such  an  emblem  become  apparent.^     A  minister  whose  good  offices 

of  certain  claims  of  Italian  subjects,  see  Mr.  Fish,  Secy,  of  State,  to  Baron 
Blanc,  Feb.  1,  1876,  MS.  Notes  to  Italy,  VII,  281,  Moore,  Dig.,  IV,  591. 

^  Upon  the  severing  of  diplomatic  relations,  even  though  war  does  not 
ensue,  the  good  offices  of  the  minister  of  a  third  State  are  similarly  invoked. 
See,  for  example,  the  course  followed  by  the  United  States  in  1908,  upon  the 
termination  of  its  diplomatic  relations  with  Venezuela,  For.  Rel.  1908,  820- 
830. 

2  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Denby,  Jr.,  Charge  at  Peking,  Aug. 
29,  1894,  For.  Rel.  1894,  106,  Moore,  Dig.,  IV,  601. 

Respecting  the  case  of  Japanese  spies  in  China  during  the  Chino- Japanese 
War  in  1894,  see  documents  in  Moore,  Dig.,  IV,  606-611,  especially  Mr. 
Gresham,  Secj'.  of  State,  to  Mr.  Denby,  Jr.,  Charge  in  China,  Oct.  30,  1894, 
For.  Rel.  1894,  119. 

^  Respecting  the  protection  by  the  American  Ambassador  in  Russia  of 
Japanese  interests  in  that  Empire  during  the  Russo-Japanese  War,  see  For. 
Rel.  1904,  430-436,  714-722;  id.,  1905,  830. 

*  Sir  E.  Goschen,  British  Ambassador  at  Berlin,  to  Sir  Edward  Grey,  British 
Foreign  Secretary,  Aug.  8,  1914,  regarding  the  assistance  rendered  the  latter 
by  his  American  colleague  Mr.  Gerard,  upon  the  outbreak  of  the  war  in  1914, 
Misc.  No.  8  (1914),  Cd.  7445.  See,  also,  Sir  L.  Mallet,  British  Ambassador 
at  Constantinople,  to  Sir  Edward  Grey,  British  Foreign  Secretary,  Nov.  20, 
1914,  respecting  the  assistance  rendered  the  latter  by  his  American  colleague, 
Mr.  Morgenthau,  Misc.,  No.  14  (1914),  Cd.  7716. 

*  See,  for  example,  M.  Cambon,  French  Ambassador  at  Washington,  to 
Mr.  Sherman,  Secy,  of  State,  April  22,  1898,  respecting  the  protection  of 
Spanish  interests  in  the  United  States,  by  the  French  Ambassador  and  the 
Austro-Hungarian  Minister  during  the  Spanish-American  War,  For.  Rel. 
1898,  785,  Moore,  Dig.,  IV,  612. 

^  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Nabuco,  Brazilian  Ambassador 
at  Washington,  July  10,  1908,  For.  Rel.  1908,  826. 

769 


§450]      THE    RIGHTS    AND    DUTIES    OF    MINISTERS 

are  so  invoked  by  a  belligerent  government  may  also  be  clothed 
by  it  with  special  authority  to  conclude  in  its  behalf  a  protocol 
of  peace.^  So  long  as  a  state  of  war  continues,  notwithstanding 
a  suspension  of  hostilities,  the  belligerent  State  to  which  the  min- 
ister of  a  neutral  is  accredited,  may,  with  reason,  deem  it  prefer- 
able that  diplomatic  communications  with  the  enem^-  continue 
to  be  made  through  him  rather  than  through  a  consular  officer 
of  the  enemy  acting  as  an  unofficial  agent.^ 

While  it  remained  a  neutral  in  the  course  of  The  World  War, 
heavy  burdens  were  imposed  upon  American  diplomatic  officers 
accredited  to  belligerent  powers.  The  endeavor  to  safeguard  and 
w^atch  over  the  interests  of  nationals  of  belligerents  at  war  with 
Germany  and  her  allies  was  scrupulously  and  vigorously  under- 
taken ;  and  if  American  ofiicers  failed  on  occasion  to  effect  re- 
straint of  ruthless  conduct,  the  United  States  experienced  as  a 
nation  satisfaction  in  the  sense  that  the  trust  confided  to  its  repre- 
sentatives was,  in  the  estimation  of  the  States  which  imposed 
it,  faithfully  performed.^ 


Miscellaneous  Restrictions  Imposed  upon  a  Minister  by 

His  Own  State 

(1) 

§  451.   Residence  and  Continuance  of  Mission. 

In  numerous  w^ays  a  State  may  restrict  the  conduct  of  its  diplo- 
matic officers  for  the  purpose  of  preserving  and  increasing  their 
usefulness.  Its  regulations  may  be  designed  both  to  subserve 
domestic  policies  and  to  facilitate  the  performance  of  obligations 
due  to  foreign  States.  Thus,  a  minister  of  the  United  States  is 
obliged  to  reside  at  the  capital  of  the  country  to  which  he  is 
accredited.     The  statutory  law  declares  that  no   diplomatic    (or 

^  "On  August  12,  1898,  there  was  signed  by  the  Secretary  of  State  on  be- 
haK  of  the  United  States  and  by  the  Ambassador  of  France  at  Washington 
on  behalf  of  Spain  a  Protocol  of  Agreement  preliminary  to  the  final  establish- 
ment of  peace  between  the  United  States  and  Spain."     For.  Rel.  1898,  800. 

2  Mr.  Moore,  Acting  Secv.  of  State,  to  M.  Cambon,  French  Ambassador, 
Aug.  19.  1898,  For.  Rel.  1898,  80.3,  Moore,  Dig.,  IV,  613. 

*  See,  in  this  connection,  James  W.  Gerard,  My  Four  Years  in  Germany, 
New  York,  1917,  especially  Chap.  X  (concerning  prisoners  of  war) ;  Hugh 
Gibson,  A  Journal  from  Our  Legation  in  Belgium,  Xew  York,  1917  (espe- 
cially 344-.360,  in  relation  to  Miss  Edith  Cavell) ;  Brand  Whitlock,  Belgium : 
A  Personal  Narrative,  New  York,  1919,  I,  370-379,  II,  81-110  (in  relation 
to  Miss  Cavell). 

770 


NON-INTERFERENCE    IN    POLITICS.     SPEECHES     [§  452 

consular)  oflficer  shall  receive  salary  for  the  time  during  which 
he  may  be  absent  from  his  post,  by  leave  or  otherwise,  beyond  the 
term  of  sixty  days  in  any  one  year.^ 

WTiile  reliance  is  placed  upon  his  judgment  and  discretion  re- 
garding the  course  to  follow  in  case  he  is  apprehensive  of  danger 
to  his  person,  a  minister  is  not  expected  to  quit  the  country  to 
which  he  is  accredited  "without  the  most  unequivocal  necessity."  - 
Nor  is  he  permitted  to  break  off  diplomatic  relations  maintained 
through  his  mission  without  the  authority  of  his  government, 
except  possibly  when  subjected  to  grave  personal  indignity,  and 
that  under  circumstances  when  he  can  reasonably  assume  that 
the  United  States  will  approve  of  his  conduct.^  At  the  present 
time  the  ability  of  an  American  minister,  under  almost  all  cir- 
cumstances, to  communicate  speedily  with  the  Department  of 
State  by  telegraph,  obviates  the  necessity  of  his  taking  such 
summary  action  without  specific  instructions. 

(2) 
§  452.   Non-interference  in  Politics.   Speeches.    Presents. 

It  has  been  said  that  the  "plain  duty  of  the  diplomatic  agents 
of  the  United  States  is  scrupulously  to  abstain  from  interfering 
in  the  domestic  policies  of  the  countries  where  they  reside."  ■* 

1  Rev.  Stat.  §  1742,  where  it  is  added  that  "the  time  equal  to  that  usually 
occupied  in  going  to  and  from  the  United  States  in  case  of  the  return,  on 
leave,  of  such  diplomatic  or  consular  officer  to  the  United  States  may  be  al- 
lowed in  addition  to  such  sixty  days." 

See.  also,  Instructions  to  the  Diplomatic  and  Consular  OfRcers  of  the 
United  States  (1897),  §  266.  It  is  here  announced  that  a  minister  is  not 
regarded  as  being  absent  from  his  post,  if,  during  periods  of  the  j^ear  when, 
for  example,  the  principal  members  of  the  government  are  absent  from  the 
capital,  he  makes  a  temporary  residence  in  some  other  place  within  the  State 
to  which  he  is  accredited,  provided  he  keeps  the  office  of  his  mission  open  as 
usual  for  the  transaction  of  business  by  a  secretary  thereof,  and  fixes  his  tem- 
porary residence  at  a  place  from  which  he  can  visit  the  office  without  delay 
and  can  be  reached  by  telegraph. 

Also  Mr.  Bavard,  Secv.  of  State,  to  Mr.  Seav,  Minister  to  Bolivia,  No. 
23,  Jan.  21,  1887,  For.  Rel.  1887,  46,  Moore,  Dig.,  IV,  563;  Mr.  Adee,  Act- 
ing Secv.  of  State,  to  Mr.  Baker,  Minister  at  Nicaragua,  Sept.  7,  1893,  For. 
Rel.  1893,  213,  Moore,  Dig.,  IV,  564. 

2  Mr.  Randolph,  Secv.  of  State,  to  Mr.  Adams,  Minister  to  the  Nether- 
lands, Feb.  27,  1795,  MS.  Inst.  U.  S.  Ministers,  II,  323,  Moore,  Dig.,  IV, 
565. 

'  Mr.  Marcv,  Secy,  of  State,  to  Mr.  Jackson,  Charge  at  Vienna,  April  8, 
1856,  MS.  Inst.  Austria.  I,  117,  Moore,  Dig.,  IV,  565. 

^  Communication  of  Mr.  Buchanan,  Secv.  of  State,  to  Mr.  Shields,  Aug. 
7,  1848,  MS.  Inst.  Venezuela,  I,  73,  Moore,  Dig.,  IV,  573;  see,  also,  Mr. 
Fish,  Secv.  of  State,  to  Mr.  Curtin,  Minister  to  Russia,  Nov.  16,  1871,  Senate 
Ex.  Doc."^No.  5,  42  Cong.,  2  Sess.,  12. 

"It  is  forbidden  to  diplomatic  officers  to  participate  in  any  manner  in  the 
political  concerns  of  the  country  of  their  residence."  Instructions  to  the 
Diplomatic  Officers  of  the  United  States  (1897),  §  68. 

771 


§452]       THE    RIGHTS   AND    DUTIES    OF   MINISTERS 

The  failure  to  respect  this  obhgation  has  led  to  the  recall  or  censure 
of  American  diplomatic  officers ;  ^  and  neglect  in  this  regard  has 
led  to  the  dismissal  or  recall  of  ministers  accredited  to  the  United 
States.^  If  legislative  or  other  action  proposed  by  the  State 
of  his  sojourn  is  deemed  to  be  hostile  to  the  rights  of  his 
own  country,  objections  on  the  part  of  the  minister  should  be 
confined  to  appropriate  representations  to  the  Secretary  of  State 
or  Minister  for  Foreign  Affairs.^ 

A  minister  may  be  in  fact  instructed  by  his  government  to 
participate  to  a  degree  in  political  affairs;  and  American  diplo- 
matic officers  have  at  times  been  the  recipients  of  instructions  in 
such  a  sense .^  In  such  a  situation  the  impropriety,  if  any,  of  the 
course  of  action  which  the  minister  obediently  pursues  is  to  be 
attributed  to  his  government  rather  than  to  himself.^    The  cir- 

1  Case  of  Mr.  Schuyler,  Moore,  Dig.,  IV,  573-574,  and  documents  there 
cited. 

Rev.  Stat.  §  1751  prohibits  an  American  diplomatic  or  consular  officer, 
without  the  consent  of  the  Secretary  of  State  previously  obtained,  from  recom- 
mending any  person,  at  home  or  abroad,  for  any  employment  of  trust  or  profit 
under  the  government  of  the  country  in  which  the  officer  is  located.  Also 
In.structions  to  the  Diplomatic  Officers  of  the  United  States,  §  70,  and  in  this 
connection  the  Case  of  the  American  Minister  to  Bohvia  in  1894,  For.  Rel. 
1894,  54-56. 

'  Request  for  Recall,  Dismissal,  supra,  §  424. 

'  Secretary  of  State  as  Organ  of  Correspondence,  supra,  §  410. 

^  In  a  communication  to  Mr.  Beaupre,  American  Minister  to  Colombia, 
June  2,  1903,  regarding  the  ratification  by  Colombia  of  a  convention  in  rela- 
tion to  the  Panama  Canal,  Mr.  Hay,  Secy,  of  State,  declared  in  part:  "You 
should,  when  the  time  seems  opportune,  in  so  far  as  you  discreetly  and  properly 
may,  exert  your  influence  in  favor  of  ratification.  It  is  also  expected  that  you 
will  know  what  hostile  influences,  if  any,  are  at  work  against  the  ratifica- 
tion of  the  treaty,  and  whether  or  not  there  is  opposition  to  it  from  European 
sources.  The  situation  is  seemingly  a  grave  one,  but  the  Department  has 
confidence  that  you  will  rise  to  the  full  measure  of  its  requirements."  For. 
Rel.  1903,  146.     Also  Same  to  Same,  telegram,  June  9,  1903,  id.,  146. 

*  "That  a  government  will  resent  attacks  made  upon  its  minister  on  ac- 
count of  his  faithful  execution  of  his  instructions,  see  Mr.  Hay;  Secy,  of  State, 
to  Senor  Blanco,  March  23,  1901,  MS.  Notes  to  Venezuelan  Legation,  II, 
53."     Moore,  Dig.,  IV,  536. 

The  abrupt  dismissal  of  Mr.  Russell,  American  Minister  at  Caracas,  by  a 
note  of  the  Venezuelan  Minister  for  Foreign  Affairs,  Jan.  28,  1877,  was  re- 
sented by  Mr.  Evarts,  Secy,  of  State,  inasmuch  as  such  action  was  without 
explanation  and  not  preceded  by  any  request  for  the  recall  of  the  Minister. 
Mr.  Evarts  announced  to  the  Venezuelan  Minister  at  Washington  that  unless 
a  satisfactory  explanation  were  forthcoming,  "the  dignity  of  this  Govern- 
ment will  require  that  your  relations  with  it  shall  also  terminate,  and  your 
passports  will  be  sent  to  you  accordingly."  The  note  of  dismissal  was  with- 
drawn and  cancelled.  Later  Mr.  Russell  being  advised  through  offi- 
cial channels  that  he  was  persona  non  grata  at  Caracas,  resigned.  It  was  the 
substance  of  an  official  despatch  from  Mr.  Russell  to  the  Secretary  of  State, 
later  communicated  to  the  House  of  Representatives  in  response  to  a  reso- 
lution, and  duly  printed,  that  gave  offense  to  the  Venezuelan  Government. 
The  publication  of  matter  necessary  for  Mr.  Russell  to  communicate  to  the 
Department  of  State,  and  yet  which  if  known  at  Caracas  was  calculated  to 
render  the  writer  thereafter  unacceptable,  rather  than  any  impropriety  of 

772 


NON-INTERFERENCE    IN    POLITICS.      SPEECHES     [§  452 

cumstance,  however,  that  his  action  is  the  faithful  execution  of  a 
specific  instruction  rather  than  a  personal  indiscreticn  neither 
authorized  nor  sought  to  be  condoned,  may  be  carefully  concealed  ; 
and  if  it  is,  the  minister  bears  the  brunt  of  the  charge  of  wrong- 
doing. 

Public  utterances  by  its  own  ministers  have  oftentimes  been  a 
source  of  embarrassment  to  the  United  States.  Hence  its  present 
instructions  wisely  prohibit  public  addresses  by  American  diplo- 
matic officers  save  on  exceptional  festive  occasions  in  the  country 
of  official  residence.  Upon  such  occasions  any  reference  to  politi- 
cal issues  pending  in  the  United  States  or  elsewhere  is  to  be  care- 
fully avoided  by  the  speaker.^  Public  expressions  of  opinion  upon 
local  political  or  other  questions  arising  within  the  State  of  sojourn 
•are  expressly  enjoined.^ 

The  statutory  law  of  the  United  States  forbids  a  diplomatic 
(as  well  as  consular)  officer  to  correspond  in  regard  to  the  public 
affairs  of  any  foreign  government  with  any  private  person,  news- 
paper or  other  periodical,  or  otherwise  than  with  the  proper 
officers  of  the  United  States.^ 

The  same  law  forbids  American  diplomatic  officers  from  asking 
or  accepting  from  any  foreign  government,  for  themselves  or  other 
persons,  any  present,  emolument,  pecuniary  favor,  office  or  title 
of  any  kind.^    Consequently  the  previous  authority  of  Congress 

conduct  on  his  part,  served  to  end  his  usefulness  as  a  diplomatic  representa- 
tive in  Venezuela.  Documents  in  Moore,  Dig.,  IV,  535-537,  and  statement 
based  thereon. 

'  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  69. 

See  speeches  of  Mr.  Bayard,  Ambassador  to  Great  Britain,  in  1895,  which 
resulted  in  a  resolution  of  censure  by  the  House  of  Representatives  the  follow- 
ing year.     For.  Rel.  1895,  I,  581,  Moore,  Dig.,  IV,  575. 

2  Instructions  to  the  Diplomatic  Officers  of  the  United  States  (1897),  §  68. 

3  Act  of  June  17,  1874,  Chap.  294,  18  Stat.  77,  U.  S.  Comp.  Stat.  1918, 
§  3199. 

■•  Id. ;  also  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897), 
§  70.  See  the  requirements  of  the  Constitution,  contained  in  Art.  I,  Section 
9,  paragraph  8,  to  the  effect  that  "No  person  holding  any  office  of  profit  or 
trust"  under  the  United  States,  "shall,  without  the  consent  of  the  Congress, 
accept  any  present,  emolument,  office,  or  title  of  any  kind  whatever  from  any 
king,  prince,  or  foreign  state." 

See  Act  of  July  9,  1918,  Chap.  143,  40  Stat.  845,  872,  permitting  all  mem- 
bers of  the  military  forces  of  the  United  States  serving  in  the  then  existing 
war  to  accept  within  a  specified  period,  from  the  government  of  any  of  the 
countries  engaged  in  war  with  any  country  with  which  the  United  States  was 
or  should  be  concurrently  likewise  engaged  in  war,  such  decorations,  when 
tendered,  as  were  conferred  by  such  government  upon  the  members  of  its  own 
military  forces. 

Also  Act  of  March  4,  1919,  Chap.  123,  40  Stat.  1325,  1326,  permitting  speci- 
fied persons  formerly  connected  with  the  American  embassy  at  Berlin,  to 
accept  pieces  of  plate  presented  to  them  by  the  British  Government  in  recogni- 
tion of  services  rendered  by  the  embassy  while  in  charge  of  British  inter- 
ests in  Germany. 

773 


§  452]       THE    RIGHTS   AND    DUTIES   OP   MINISTERS 

is  necessary  in  order  to  enable  such  an  officer  to  accept  any  presents, 
orders  or  other  testimonials  in  acknowledgment  of  services  ren- 
dered to  a  foreign  State  or  its  nationals.^ 

(3) 
§  453.   Marriages. 

The  laws  of  the  United  States  do  not  confer  on  diplomatic 
officers  any  power  to  celebrate  marriages,  to  act  as  official  witnesses 
at  the  ceremony  of  marriage,  or  to  grant  certificates  of  marriage.^ 
It  is  not  unusual  for  Americans  abroad  to  ask  permission  to  have 
a  marriage  ceremony  performed  in  the  embassy  or  legation  and 
in  the  presence  of  their  diplomatic  representative.  While  there 
is  no  reason  generally  why  such  a  request  should  be  denied,  the 
Department  of  State  declares  that  the  parties  making  the  applica- 
tion should  be  informed  that  in  its  opinion,  the  ceremony  of  mar- 
riage, performed  within  the  precincts  of  the  legation,  should,  with 
certain  limitations,  comply  with  the  requirements  of  the  laws  of 
the  country  within  which  the  legation  is  situated.^  Upon  applica- 
tion for  the  use  of  a  legation  for  such  a  purpose,  it  is  made  the  duty 
of  the  American  diplomatic  representative  to  inquire  whether  the 
parties  may  lawfully  marry  according  to  the  laws  of  the  country 
in  which  the  legation  is  situated ;  and  whether  the  proper  steps 

^  Instructions  to  the  Diplomatic  Officers  of  the  United  States  (1897),  §  71 ; 
For.  Rel.  1907,  II,  1016-1018,  concerning  decorations  conferred  on  American 
citizens  prior  to  their  receiving  appointments  in  the  diplomatic  service ;  also 
For.  Rel.  1909,  541. 

Engaging  in  Business  :  Practice  of  Law.  According  to  §  7,  Chap. 
23,  Act  of  Feb.  5,  1915,  38  Stat.  807,  U.  S.  Comp.  Stat.  1918,  §  3130d:  "No 
ambassador,  minister,  minister  resident,  diplomatic  agent,  or  secretary  in  the 
Diplomatic  Service  of  any  grade  or  class  shall,  while  he  holds  his  office,  be 
interested  in  or  transact  any  business  as  a  merchant,  factor,  broker,  or  other 
trader,  or  as  an  agent  for  any  such  person  to,  from,  or  within  the  country  or 
countries  to  which  he  or  the  chief  of  his  mission,  as  the  case  may  be,  is  ac- 
credited, either  in  his  own  name  or  in  the  name  or  through  the  agency  of  any 
other  person,  nor  shall  he,  in  such  country  or  countries,  practice  as  a  lawj'er 
for  compensation  or  be  interested  in  the  fees  or  compensation  of  any  lawyer 
so  practicing." 

2  The  language  of  the  text  is  that  contained  in  Instructions  to  American 
Diplomatic  Officers  (1897),  §  177,  Moore,  Dig.,  II,  514.  See,  also,  documents 
in  Moore,  Dig.,  II,  506-514 ;  also  Mr.  Knox,  Secy,  of  State,  to  Mr.  Ide,  Min- 
ister to  Spain,  Feb.  24,  1910,  For.  Rel.  1910,  855;  Consuls,  Miscellaneous 
Duties,  infra,  §  488. 

2  Instructions  to  American  Diplomatic  Officers  (1897),  §  182,  Moore,  Dig., 
II,  514. 

The  Department  of  State  has  found  it  necessary,  however,  to  instruct 
American  diplomatic  and  consular  officers  in  China  to  refrain  from  per- 
mitting the  use  of  their  offices  for  the  performance  of  marriage  ceremonies 
unless  satisfied  that  they  are  bona  fide,  and  not  employed  as  a  cloak  or  means 
to  foster  a  nefarious  traffic.  See  instructions  to  the  American  Diplomatic 
and  Consular  Representatives  in  China,  June  16,  1905. 

774 


MARRIAGES  [§  453 

have  been  taken  to  enable  the  marriage  ceremony  to  be  legally 
performed  according  to  such  laws.  If  either  of  such  inquiries  is 
answered  in  the  negative,  and  the  case  does  not  fall  within  one  of 
the  exceptions  stated  in  the  Instructions  (to  American  Diplomatic 
OflBcers,  section  179),  it  is  said  to  be  the  duty  of  the  diplomatic 
representative  to  inform  the  applicant  that  the  former  cannot 
permit  the  ceremony  to  be  performed  at  the  legation,  as  there  may 
be  grave  doubts  respecting  its  valid it^  .^ 

American  diplomatic  as  well  as  consular  officers  are  deemed  to 
be  incompetent  to  certify-  as  to  the  legal  requisites  of  marriage 
in  the  United  States,  because  no  such  power  is  conferred  upon 
them  either  by  the  laws  of  the  United  States  or  by  international 
law.  Although  such  an  officer  may  possess  private  knowledge 
respecting  the  laws  of  marriage,  he  is  not  authorized  to  certify 
them  upon  that  knowledge ;  for  it  is  not  a  question  of  individual 
knowledge,  but  of  official  competency.^ 

1  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  183, 
Moore,  Dig.,  II,  514.  Also  Mr.  Uhl,  Acting  Secy,  of  State,  to  Mr.  Baker, 
Minister  to  Nicaragua,  Feb.  24,  1894,  For.  Rel.  1894,  447,  Moore,  Dig.,  II, 
513. 

For.  Rel.  1907,  I,  519-526,  and  id.,  1908,  360-365,  concerning  the  marriage 
of  American  citizens  in  Germany  and  on  German  territory. 

2  The  language  in  the  text  is  substantially  that  of  Mr.  Olney,  Secy,  of  State, 
to  Mr.  Runyon,  American  Ambassador  to  Germany,  Dec.  9,  1895,  For.  Rel. 
1895,  I,  5.38,  Moore,  Dig.,  II,  535.  See,  also,  Mr.  Bayard,  Secy,  of  State,  Cir- 
cular to  Diplomatic  and  Consular  officers,  Feb.  8,  1887,  to  which  was  ap- 
pended the  following  order  :  "It  is  not  competent,  without  the  special  author- 
ity of  this  Department,  for  diplomatic  agents,  consuls,  or  consular  agents, 
to  certify  officially  as  to  the  status  of  persons  domiciled  in  the  United  States 
and  proposing  to  be  married  abroad,  or  as  to  the  law  in  the  United  States, 
or  in  any  part  thereof,  relating  to  the  solemnization  of  marriages."  For. 
Rel.  1887,  1133,  Moore,  Dig.,  II,  526,  527. 


775 


TITLE    E 
OFFICIAL  NEGOTIATIONS 


§  454.   The  Diplomatic  Channel. 

In  negotiations  between  States,  official  correspondence  should 
doubtless  be  confined  on  both  sides  to  the  diplomatic  channel.^ 
In  1815,  Secretary  Monroe  declared  that  the  Department  of 
State  can  receive  no  communication  from  subjects  of  another 
country  on  international  matters,  except  through  the  minister  of 
such  country.^  Conversely,  it  has  been  announced  that  "  no  officer, 
civil,  military,  or  naval,  can  properly  carry  on  an  ofiicial  corre- 
spondence with  a  foreign  government,  except  through  the  Depart- 
ment of  State,  or  its  diplomatic  representative  at  the  seat  of  such 
government."  ^ 

While  the  Department  of  State  has  declared  that  "all  usage 
and  precedent  make  it  entirely  competent  and  proper"  for  a 
government  to  present  a  diplomatic  claim  against  another,  either 
through  the  ambassador  thereof  or  through  the  ambassador  of 
the  former  at  the  capital  of  the  latter,  at  least  one  European  State 
has  announced  that  as  a  matter  of  principle  and  according  to  pre- 
vailing practice,  it  "receives  complaints  or  suggestions  from  friendly 
governments  only  when  they  are  presented  by  the  diplomatic 
representatives  of  such  governments  accredited  to  it,"^ 

^  See  The  Secretary  of  State  as  Organ  of  Cojrespondence,  supra,  §  410, 
with  special  reference  to  occasions  when  the  President  of  the  United  States 
holds  direct  communication  with  the  heads  of  foreign  States  or  with  the 
ambassadors  thereof.  Also  Ambassadorial  Privileges,  infra,  §  459 ;  Com- 
munications through  Non-Governmental  Channels,  supra,  §  409. 

2  The  language  of  the  text  is  that  contained  in  Moore,  Dig.,  IV,  693,  citing 
Mr.  Monroe,  Secy,  of  State,  to  Admiral  Cochrane,  April  5,  1815,  MS.  Notes 
to  Foreign  Legations,  II,  80. 

3  Communication  of  Mr.  Fish,  Secy,  of  State,  to  Mr.  Wines,  Jan.  25,  1872, 
92  MS.  Dom.  Let.  299,  Moore,  Dig.,  IV,  691.  Also  Mr.  Olney,  Secy,  of  State, 
to  the  Secy,  of  the  Navy,  Jan.  2,  1896,  respecting  certain  letters  from 
Admiral  Selfridge,  U.  S.  N.,  to  local  Turkish  officials.  For.  Rel.  1895,  II,  1440, 
Moore,  Dig.,  IV,  620;  Mr.  Hill,  Act.  Secy,  of  State,  to  Mr.  Finch,  Minister 
to  Uruguay,  No.  180,  Jan.  7,  1901,  MS.  Inst.  Uruguay,  II,  71,  Moore,  Dig., 
IV,  622. 

*  Mr.  Olney,  Secy,  of  State,  to  Baron  von  Thielmann,  German  Ambassador, 
Oct.  7,  1895,  For.  Rel.  1895,  I,  480,  481 ;  Baron  von  Thielmann  to  Mr.  Olney, 
Oct.  14,  1895,  id.,  I,  486,  Moore,  Dig.,  IV,  692-693. 

776 


LANGUAGE.     TONE  [§  455 

It  may  be  observed  that  the  diplomatic  agencies  of  the  United 
States  are  not  open  for  the  presentation  of  memorials  of  its  citizens 
to  foreign  governments,  especially  when  such  documents  deal 
with  questions  of  national  or  international  policy  not  affecting  the 
United  States,  and  even  in  cases  when  the  rights  or  interests  of 
American  citizens  are  concerned.^ 


§  455.   Language.     Tone. 

It  is  the  custom  of  diplomatic  intercourse  for  an  agent  of  a  State, 
whether  himself  a  minister  for  foreign  affairs  or  a  diplomatic 
officer,  to  address  communications  in  his  own  tongue  to  the  foreign 
government  or  representative  thereof  with  which  he  corresponds.^ 
Accordingly  the  United  States  directs  its  diplomatic  officers  to 
employ  the  English  language.^  They  are  instructed,  however, 
that  in  countries  of  the  East,  English  diplomatic  communications 
to  the  local  government  are  generally  expected  to  be  accompanied 
by  translations  into  the  language  of  the  country  ;  but  such  officers 
are  cautioned  against  omitting  the  English  text,'*  to  which  alone, 
in  any  event,  resort  should  be  had  in  ascertainment  of  their  pre- 
cise intentions  should  any  question  arise.^ 

That  the  tone  of  diplomatic  correspondence  should  always  be 
courteous  must  be  obvious.  Discourteous  expressions  betraying 
truculence  or  couched  in  arrogant  terms  necessarily  arouse  the 
sensibilities  of  governments  to  which  they  are  addressed,  and  hence 
serve  to  foment  disputes  which,  as  Secretary  Bayard  once  declared, 
"it  is  the  prerogative  and  aim  of  diplomacy  to  avert."  ^    Thus 

1  Mr.  Gresham,  Secy,  of  State,  to  Mr.  Garrett,  April  2,  1895,  201  MS. 
Dom.  Let.  361,  citing  Instruction  to  Mr.  Runyon,  American  Ambassador  at 
Berlin,  Nov.  22,  1893,  Moore,  Dig.,  IV,  694.  In  the  latter  it  was  declared 
that,  "It  is  a  very  general  rule  among  governments  that  the  individual's 
privilege  to  memorialize  the  crown  is  to  be  availed  of  directly,  not  through  a 
diplomatic  channel,  and  a  tender  through  the  latter  course  may  be  and  fre- 
quently is  declined." 

See,  also,  Mr.  Fish,  Secy,  of  State,  to  Mr.  Bassett,  Minister  to  Haiti,  Nov. 
20,  1875,  MS.  Inst.  Haiti,  II,  66,  Moore,  Dig.,  IV,  692. 

2  Mr.  Frelinghuysen,  Secy,  of  State,  to  Mr.  Robeson,  Feb.  28,  1882,  MS. 
Inst.  Barbary  Powers,  XVI,  80,  Moore,  Dig.,  IV,  705. 

'  Instructions  to  the  Diplomatic  Officers  of  the  United  States  (1897),  §  94. 

*  Id.,  §  95.  In  the  same  section  it  is  also  declared  that:  "In  European 
and  American  countries  urgent  need  of  hastening  a  negotiation  may  some- 
times require  that  a  translation  accompany  a  note ;  but  recourse  to  such  an 
expedient  should  be  unusual  and  occur  only  when  there  is  reasonable  certainty 
that  the  translation  will  be  faithful  and  correct  in  style." 

*  Id.,  §  96 ;  also  documents  in  Moore,  Dig.,  IV,  704-705. 

^  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Jackson,  Minister  to  Mexico,  July 
31,  1885,  MS.  Inst.  Mexico,  XXI,  347,  Moore,  Dig.,  IV,  708. 

777 


§455]  OFFICIAL  NEGOTIATIONS 

the  sincerity  of  the  opposing  party  should  not  be  called  in  ques- 
tion, nor  its  integrity  impeached/  unless  it  becomes  apparent  that 
failure  to  do  so  may  be  construed  as  attributable  to  improper 
motives.  Nothing,  however,  need  ever  deter  a  government  or  its 
representative  from  evincing  entire  candor  in  diplomatic  discussion, 
or  from  setting  forth  and  protesting  against  national  grievances 
with  absolute  frankness.  Nevertheless,  in  so  doing,  the  careful 
maintenance  of  a  conciliatory  attitude  is  none  the  less  valuable 
as  a  means  either  of  preventing  a  suspension  of  negotiations  or  of 
obtaining  redress  desired. 

3 
§  456.   Publication. 

A  State  may  not  unreasonably  publish  correspondence  with 
diplomatic  or  other  agents  abroad  without  deferring  to  the  judg- 
ment of  any  foreign  country  the  affairs  of  which  form  the  subject 
of  discussion.^  In  so  doing  care  should  be  taken,  however,  to 
guard  from  publication  such  expression  of  personal  views  of  a 
minister  as  might,  if  known,  expose  him  to  criticism  in  the  country 
of  his  official  residence.^  Reflections  upon  the  commercial  opera- 
tions or  character  of  the  inhabitants  of  a  foreign  State  should  not 
be  given  circulation.* 

In  one  sense  the  propriety  of  making  public  an  instruction  to  a 
minister  intended  for  communication  to  a  foreign  government, 
and  prior  to  its  receipt  by  the  latter,  may  be  questioned,  especially 
when  the  document  embodies  a  complaint  in  relation  to  the  con- 
duct of  such  government.  It  may  be  doubted,  however,  whether 
any  rule  of  international  law  forbids  publication  at  such  a  time. 

In  1895,  the  Department  of  State  announced  in  a  communica- 
tion to  the  German  Ambassador,  that  the  Government  "was 
fully  aware  of  the  practice  to  submit  to  foreign  governments 

1  Mr.  Forsyth,  Secv.  of  State,  to  Mr.  Livingston,  Minister  to  France,  March 
5,  1835,  Brit,  and  For.  State  Pap.,  XXIII,  1319,  Moore,  Dig.,  IV,  707. 

2  Mr.  Adee,  Acting  Secy,  of  State,  to  Baron  von  Thielmann,  German  Am- 
bassador, No.  27,  Aug.  14,  1895,  MS.  Notes  to  Germany,  XI,  483,  Moore, 
Dig.,  IV,  724;  Mr.  Seward,  Secy,  of  State,  to  Mr.  Adams,  Minister  to  Great 
Britain,  No.  859,  March  23,  1864,  MS.  Inst.  Great  Britain,  XIX,  214,  Moore, 
Dig.,  IV,  718. 

3  Mr.  Davis,  Acting  Secv.  of  State,  to  Mr.  Sargent,  May  23,  1883,  MS. 
Inst.  Germany,  XVII,  269,  Moore,  Dig.,  IV,  721. 

*  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Snowden,  Minister  to  Greece,  No.  26, 
March  8,  1890,  For.  Rel.  1889,  483,  Moore,  Dig.,  IV,  722. 

Declared  Mr.  Adee,  Acting  Secy,  of  State,  in  a  communication  to  Baron 
von  Thielmann,  German  Ambassador,  No.  27,  Aug.  14,  1895:  "I  am  indis- 
posed to  question  the  propriety  of  excluding,  as  your  note  seems  to  contem- 
plate, from  official  publications  of  this  character  statements  or  criticisms 

778 


PUBLICATION  [§  456 

official  international  correspondence,  exchanged  with  it  upon 
matters  requiring  confidence  and  reserve."  ^  American  diplo- 
matic officers  are  instructed  that  under  no  circumstances  should 
any  public  or  official  paper  be  published  without  the  express  con- 
sent of  the  Department  of  State.^ 

which,  however  legitimate,  or  made  necessary  in  the  performance  of  the  writer's 
duty,  might  appear  offensive  to  a  foreign  government  or  be  calculated  to  wound 
the  sensibilities  of  a  friendly  people."  MS.  Notes  to  Germany,  XI,  483, 
Moore,  Dig.,  IV,  724. 

2  Instructions  to  the  Diplomatic  Oflficers  of  the  United  States  (1897),  §  107 ; 
also  §  106. 


779 


TITLE   F 
CEREMONIAL 


§  457.   Observance  of  Formalities. 

The  intercourse  of  States  has  led  to  the  general  acceptance  of 
certain  conventionalities  incidental  to  the  maintenance  of  diplo- 
matic relations.  Upon  its  admission  to  membership  in  the  family 
of  nations,  a  new  State  is  expected  to  conduct  its  foreign  affairs 
in  conformity  with  accepted  usage.  Observance  of  such  formal- 
ities as  have  received  widespread  and  habitual  recognition  is  found 
to  be  an  aid  rather  than  a  detriment  to  effective  diplomacy,  with- 
out betokening,  in  the  case  of  a  republic,  the  slightest  loosening 
of  attachment  to  democratic  principles  upon  which  it  may  be 
founded.^ 

The  United  States,  like  other  Powers,  is  not  reluctant  to  send  a 
special  embassy  to  attend  the  coronation  of  a  king,^  or  the  funeral 
of  an  emperor.^  Nor  does  the  Department  of  State  at  the  present 
time  forbid  American  diplomatic  officers  to  wear  upon  suitable 
occasions  an  appropriate  court  costume  in  accordance  with  the 
local  usage. ^     On  the  other  hand,  the  LTnited  States  wisely  declines 

'  Instructions  to  Diplomatic  Officers  of  the  United  States  (1897),  §  13, 
respecting  conformity  to  ceremonial  usage. 

^  For.  Rel.  1902,  498,  respecting  a  special  embassy  to  the  coronation  of 
King  Edward  VII,  of  Great  Britain,  in  1902 ;  also  For.  Rel.  1906,  II,  1344- 
1347,  respecting  a  special  embassy  to  attend  the  celebration  of  the  wedding 
of  the  King  of  Spain  to  Princess  Victoria  Eugenia  of  Battenberg,  in  1906. 

'  For.  Rel.  1909,  215-219,  respecting  the  appointment  of  Minister  Rockhill 
as  special  ambassador  to  attend  the  funeral  of  the  Emperor  of  China  in  1909. 

''  Mr.  Adee,  Acting  Secy,  of  State,  to  Mr.  Tower,  Ambassador  to  Russia, 
No.  87,  Sept.  15,  1899,  MS.  Inst.  Russia,  XVIII,  224,  Moore,  Dig.,  IV,  772, 
relied  upon  by  Mr.  Bacon,  Acting  Secy,  of  State,  in  an  instruction  to  Mr. 
O'Brien,  Minister  to  Denmark,  March  9,  1906,  For.  Rel.  1906,  I,  527.  Mr. 
Adee  declared  that  the  Department  of  State  had  always  distinguished  between 
a  uniform  and  a  court  dress  conforming  to  local  custom ;  the  former  serving 
to  indicate  a  branch  of  public  service  to  which  the  bearer  belonged  and  also 
the  rank  or  grade  held  by  him  therein,  the  latter  denoting  no  public  office 
or  function. 

See,  also.  Rev.  Stat.  §  1688,  prohibiting  officers  of  the  several  grades  in  the 
diplomatic  service  of  the  United  States  from  wearing  "anv  uniform  or  offi- 
cial costume  not  previously  authorized  by  Congress"  ;  also  Rev.  Stat.  §  1226, 

780 


RULES    OF   PRECEDENCE  [§  458 

to  yield  to  any  formality  the  observance  of  which  might  imply  an 
admission  of  inferiority  on  its  part.^  For  officers  of  its  govern- 
ment, at  home  or  abroad,  it  counts  upon  such  manifestation 
of  respect  as  is  commonly  accorded  those  of  foreign  States  in  like 
stations.  While  not  itself  disposed  to  emphasize  formality,  the 
United  States  is  careful,  when  such  issues  are  raised,  to  attach 
such  significance  to  them  as  its  owm  dignity  and  independence 
appear,  in  the  particular  case,  to  require.^ 

2 
§  458.   Rules  of  Precedence. 

Following  the  rules  of  Vienna  as  modified  by  the  Congress  of 
Aix-la-Chapelle,  the  following  grades  of  diplomatic  representa- 
tion are  recognized  by  the  United  States :  Ambassador,  Minister 
Plenipotentiary,  Minister  Resident  and  Charge  d 'Affaires.^  Ac- 
cording to  Secretary  Hay 

In  each  of  these  grades  individual  precedence  is  determined 
by  the  date  of  the  envoy's  presentation  of  his  credentials.^    .  .  . 

authorizing  officers  who  have  served  during  the  rebelHon  as  volunteers  in  the 
Army  of  the  United  States  and  have  been  honorably  mustered  out  of  the 
volunteer  service,  to  bear  the  official  title,  and,  upon  occasions  of  ceremony, 
to  wear  the  uniform  of  the  highest  grade  they  have  held  by  brevet  or  other 
commissions  in  the  volunteer  service.  Respecting  the  statutory  require- 
ments, see  Instructions  to  the  Diplomatic  Officers  of  the  United  States  (1897), 
§§66  and  67. 

Concerning  earlier  controversies  respecting  diplomatic  dress,  see  docu- 
ments in  Moore,  Dig.,  IV,  761-771 ;  John  W.  Foster,  The  Practice  of  Diplo- 
macy, 130-158;    F.  Van  Dyne,  Our  Foreign  Serv-ice,  274-261. 

Concerning  certain  other  aspects  of  social  intercourse,  see  docimients  in 
Moore,  Dig.,  IV,  747-761. 

Also  Act  of  June  3,  1916,  Chap.  134,  §  125,  39  Stat.  216,  U.  S.  Comp.  Stat. 
1918,  §  1949a. 

1  See,  for  example.  Instructions  of  Mr.  Webster,  Secy,  of  State,  to  Mr. 
Cushing,  Minister  to  China,  May  8,  1843,  6  Webster's  Works,  467,  469,  Moore, 
Dig.,  V,  416;  also  President  Buchanan,  Annual  Message,  Dec.  19,  1859,  re- 
specting the  failure  of  Mr.  Ward,  Minister  to  China,  to  obtain  an  audience 
with  the  Emperor  by  reason  of  a  refusal  to  submit  to  the  "humiliating  cere- 
monies required  by  \he  etiquette  of  this  strange  people  in  approaching  their 
sovereign."     Richardson's  Messages,  V,  559,  Moore,  Dig.,  IV,  773. 

2  Declared  Mr.  JefTerson,  Secy,  of  State,  to  M.  Genet,  French  Minister, 
Dec.  9,  1793,  "No  government  can  disregard  formalities  rnore  than  ours. 
But  when  formalities  are  attacked,  with  a  view  to  change  principles,  and  to 
introduce  an  entire  independence  of  foreign  agents  on  the  nation  with  whom 
they  reside,  it  becomes  material  to  defend  formalities."  4  Jefferson's  Works, 
Washington's  ed.,  90,  92,  Moore,  Dig.,  IV,  728. 

'  Classification  of  Ministers,  supra,  §  411. 

*  Communication  to  Mr.  Sampson,  Minister  to  Ecuador,  No.  131,  Feb.  17, 
1900,  MS.  Inst.  Ecuador,  II,  22,  Moore,  Dig.,  IV,  732.  It  is  there  also  stated 
that  "the  holding  by  the  envoy  of  an  additional  consular  office  is  entirely 
disregarded  ;  only  the  diplomatic  rank  he  holds  as  chief  of  the  mission,  per- 
manently or  for  the  time  being,  is  taken  into  account." 

781 


§  458]  CEREMONIAL 

A  charge  d'affaires  missi,  that  is,  a  person  bearing  a  letter  ad- 
dressed to  the  Secretary  of  State  accrediting  him  as  charge,  is 
looked  upon  as  a  permanent  envoy  of  the  fourth  class,  and  as 
such  takes  precedence  over  a  charge  d'affaires  ad  interim.  Any 
member  of  the  regular  diplomatic  personnel  of  a  mission  may 
become  charge  d'affaires  ad  interim  upon  presentation  as  such 
to  the  Secretary  of  State  by  the  retiring  envoy,  or  ex  officio  upon 
the  death  or  disability  of  the  regular  head  of  the  mission.^  The 
fact  that  a  chief  of  a  foreign  mission  in  one  country  may  at 
the  same  time  be  accredited  in  the  same  or  another  diplomatic 
capacity  to  the  government  of  another  country  does  not  affect 
his  precedence  in  either. 

The  United  States  follows  the  rule  that,  in  general,  new  cre- 
dentials (maintaining  the  same  rank)  do  not  alter  the  precedence 
gained  by  priority  of  original  reception.^ 

As  the  United  States  has  sent  no  envoy  to  the  Vatican  since  the 
Government  of  the  States  of  the  Church  ceased  to  exist,  and  has 
since  that  time  received  no  envoy  from  the  Pope,  occasion  for  the 
recognition  at  Washington  of  honorary  precedence  to  a  papal 
nuncio  has  not  arisen.^ 


§  459.   Ambassadorial  Privileges. 

As  a  consequence  of  his  being  the  personal  representative  of  his 
sovereign,  or,  in  the  case  of  a  republic,  of  the  whole  people  of  his 
country,  an  ambassador  is  accorded  special  distinction.  Re- 
garded as  the  equal  of  the  head  of  the  State  to  which  he  is  accredited, 
there  is  asserted  in  his  behalf  the  right  to  be  treated  accordingly. 
Thus  it  is  declared  that  the  foreign  ambassadors  at  Washington 

assert  the  right,  when  present  at  official  ceremonies  conducted 
by  the  Government  of  the  United  States,  to  come  next  to  the 
President,  thus  outranking  the  Secretary  of  State  and  other 
members  of  the  cabinet,  and  all  other  officials  of  government  — 

1  It  is  also  announced  in  the  same  communication  that  "a  consular  officer, 
not  holding  a  diplomatic  appointment  also,  may  not  become  a  charge  d'affaires 
ad  interim;  he  can  only  be  made  a  charg<5  d'affaires  missi  by  special  credentials 
in  that  capacity.  In  neither  case  would  the  fact  of  the  charge's  holding  a 
coincident  consular  appointment  affect  his  precedence  as  charg^."  Com- 
munication to  Mr.  Sampson,  Minister  to  Ecuador,  No.  131,  Feb.  17,  1900,  MS. 
Inst.  Ecuador,  II,  22,  Moore,  Dig.,  IV,  732. 

2  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Buck,  May  27,  1886,  MS.  Inst.  Peru, 
XVII,  217,  Moore,  Dig.,  IV,  734.  Concerning  Official  Calls,  see  documents 
in  Moore,  Dig.,  IV,  743-747. 

3  Mr.  Uhl,  Acting  Secy,  of  State,  to  Mr.  Dunbar,  Sept.  10,  1894,  198  MS. 
Dom.  Let.  525,  Moore,  Dig.,  IV.  735. 

782 


AMBASSADORIAL    PRIVILEGES  [§459 

executive,  legislative,  and  judicial.  This  claim  the  Department 
of  State  in  principle  concedes  except  as  to  the  Vice-President. 
The  ambassadors  have,  as  a  courtesy,  yielded  precedence  to 
the  Vice-President.^ 

An  American  ambassador  at  his  post  is  said  to  outrank  every 
other  American  citizen  who  may  be  there,  except  the  President, 
and  to  receive  in  fact  "  honors  similar  to  those  which  are  due  to  a 
Chief  of  State  when  he  is  present."  ^ 

The  right  of  access  to  the  head  of  the  State  to  which  he  is  ac- 
credited, and  that  without  delay,  gives  to  an  ambassador  the  op- 
portunity to  exercise  his  diplomatic  functions  with  a  facility  not 
possessed  by  an  officer  of  lesser  rank.  Thus  in  case  of  national 
emergency  he  may  be  of  special  usefulness  to  his  own  country.^ 
It  may  be  doubted  whether  the  United  States  could  at  the  present 
time  adequately  conduct  its  relations  with  the  more  important 
States  to  which  it  accredits  ambassadors,  through  the  medium  of 
representatives  of  a  lower  grade. 

1  Statement  in  Moore,  Dig.,  IV,  740,  approved  by  the  Hon.  A.  A.  Adee, 
Second  Assistant  Secretary  of  State.     The  practice  remains  unchanged. 

Respecting  the  rank  of  diplomatic  representatives,  and  deploring  the  use 
by  the  United  States  of  the  ambassadorial  grade,  see  John  W.  Foster,  The 
Practice  of  Diplomacy,  15-33. 

2  Charlemagne  Tower,  Essays  Political  and  Historical,  63. 

*  The  same  writer  declares  that  "the  Government  has  in  its  ambassador 
a  representative  whose  position  is  recognized  abroad  with  the  highest  distinc- 
tion ;  whose  communications  take  precedence  of  all  others  in  international 
affairs ;  who  speaks  with  authority ;  who  must  be  heard  without  delay,  and 
through  whom  the  interests  of  the  nation  may  be  immediately  and  effectively 
safeguarded  or  the  instructions  of  the  President  through  the  Department  of 
State  may  be  instantly  carried  out."     Id.,  66. 


783 


PAET   lY 

CONSULS  1 
TITLE  A 

§  460.   Classes  and  Titles. 

According  to  the  existing  law  of  the  United  States  the  term 
"consular  oflBcer"  is  deemed  to  include  persons  in  its  service 

*  Concerning  Consuls  see  documents  in  Moore,  Dig.,  V,  2-154;  Consular 
Regulations  of  the  United  States  (1896) ;  Continuations  and  amendments 
thereof,  referred  to  in  Augustus  E.  Ingram's  Digest  of  Circular  Instructions 
to  Consular  Officers  (Jan.  1,  1897,  to  May  25,  1915) ;  "American  Consular 
Service",  Dept.  of  State,  February,  1920. 

Bibliography  in  Bonfils-Fauchille,  7  ed.,  §  733 ;  bibliography  in  Clunet, 
Tables  Generates,  I,  445-448,  452-457,  874-878;  bibliography  in  Ellery  C. 
Stowell,  Le  Consul,  Paris,  1909,  319-345. 

Proceedings  of  the  Institute  of  International  Law,  Annuaire,  XI,  348-394, 
XII,  275-281,  XIII,  179-194,  XV.  272-309,  embodying  Resolutions  adopted 
Sept.  26,  1896,  respecting  Consuhir  Immunities. 

See,  also,  general^,  Marcello  Arduino,  Consoli,  Consolati  e  diritto  Consolare, 
Milan,  1908 ;  Bonfils-Fauchille,  7  ed.,  §§  733-791 ;  Calvo,  5  ed..  Ill,  §§  1368- 
1450,  pp.  215-282  ;  Wilbur  J.  Carr,  "  The  American  Consular  Service",  Am.  J., 
I,  891 ;  A.  de  Clercq  and  C.  de  Vallat,  Guides  pratiques  des  consulats,  5  ed., 
Paris,  1898 ,  Formulaires  des  chancelleries  diplomatiques  et  consulaires,  7  ed., 
Paris,  1909;  Encyc.  Brit.,  11  ed.,  "Consul",  VII,  20;  John  W.  Foster,  The 
Practice  of  Diplomacy,  1906,  216-242;  Hall,  Higgins'  7  ed.,  §  105;  Foreign 
Powers  and  Jurisdiction  of  the  British  Crown,  4  ed.,  Oxford,  1895 ;  Hershey, 
Int.  Law,  51-52,  299-307,  with  bibUography ;  Baron  A.  Heyking,  A  Practical 
Guide  for  Russian  Consular  Officers,  London,  1904 ;  Chester  Lloyd  Jones, 
The  Consular  Service  of  the  United  States,  1906;  CamiUe  Jordan,  "  Les 
Consuls  dans  les  pays  paisant  partie  de  la  communaute  internationale" ,  Rev. 
Droit  Int.,  2  ser.,  VIII,  479  and  717  ;  B.  W.  von  Konig,  Handbuch  des  deutschen 
Konsularwesens,  7  ed.,  Berlin,  1909;,  Ernest  Lehr,  "De  rOrganisation  et  des 
Attributions  du  Corps  Consulaire  des  Etats-Unis  d' Amerique" ,  Rev.  Droit  Int., 
2  ser.,  XIV,  5  ;  Ernest  Ludwig,  Consular  Treaty  Rights,  Akron,  1913  ;  Malfatti 
di  Monte  Tretto,  Handbuch  des  Osterreichisch  ungarischen  Konsularwesens, 
2  ed.,  \  ienna,  1904;  Manuel  diplomatique  et  consulaire,  published  under  the 
direction  of  the  Minister  of  Foreign  Affairs  of  Belgium,  1901-1905  ;  R.  Monnet, 
Manuel  diplomatique  et  consulaire,  3  ed.,  Paris,  1910 ;  Oppenheim,  2  ed.,  I, 
§§  418-442;  Phillimore,  II,  §§  243-276,  235-251;  Julien  Pillaut,  Manuel  de 
droit  consulaire,  Paris,  1910 ;  Eugene  Schuyler,  American  Diplomacy,  1895, 
41-104;  Georges  SaUes,  L'Instituiion  des  Consulats,  Paris,  1898;  Stockton, 
Outlines,  §§  102-109;  Ellery  C.  StoweU,  Le  Consul,  Paris,  1909;  Consular 
Cases  and  Opinions,  Washington,  1909  ;  Luigi  Testa,  Le  voci  del  servizio  diplo- 
matico-consolare  italiano  e  straniero,  3  ed.,  Rome,  1912  ;  Frederick  Van  Dyne, 
Our  Foreign  Service,  Rochester,  1909;  G.  G.  Wilson,  Chap.  VI;  Woolsey, 
6  ed.,  §§  99-100;  Ph.  Zorn,  Die  Konsulargesetzgebung  des  deutschen  Reiches, 
2  ed.,  Berlin,  1901. 

785 


§  460]  CONSULS 

designated  as  "consuls-general,  consuls,  vice-consuls,  interpreters 
in  consular  offices,  student  interpreters,  and  consular  agents, 
and  none  others."  ^  There  are  also  inspectors-general  of  con- 
sulates designated  and  commissioned  as  consuls-general  at  large.^ 

The  terms  "consul-general"  and  "consul"  are  declared  to 
"denote  full,  principal,  and  permanent  consular  officers  as  dis- 
tinguished from  subordinates  and  substitutes."  ^ 

The  term  "consular  agents"  is  said  to  denote  consular  officers 
subordinate  to  such  principals,  exercising  the  powers  vested  in 
them  and  performing  the  duties  prescribed  for  them  by  regulation 
of  the  President  at  posts  or  places  different  from  those  at  which 
such  principals  are  located,  respectively.^ 

"Vice-consuls"  are  said  to  denote  consular  officers  subordinate 
to  such  principal's,  exercising  and  performing  the  duties  within 
the  limits  of  their  consulates  at  the  same  or  at  different  points 

1  Rev.  Stat.  §  1674,  amended  Feb.  5,  1915,  Chap.  23,  §  6,  38  Stat.  806,  U.  S. 
Comp.  Stat.  1918,  §  3116. 

By  the  Act  of  Feb.  5,  1915,  the  offices  of  vice-consul-general,  deputy-consul- 
general,  and  deputy  consul  were  abolished. 

By  the  Act  of  AprU  5,  1906,  Chap.  1366,  §  3,  34  Stat.  100,  "The  grade  of 
commercial  agent"  was  abolished. 

2  Act  of  April  5,  1906,  Chap.  1366,  §  4,  34  Stat.  100,  U.  S.  Comp.  Stat.  1918, 
§  3141.  It  is  the  duty  of  these  officers  to  make  such  inspections  of  consular 
offices  as  the  Secretary  of  State  shall  direct,  and  to  report  to  him.  Each 
consular  office  is  to  be  inspected  at  least  once  in  every  two  years.  It  is  also 
provided  that  "whenever  the  President  has  reason  to  believe  that  the  business 
of  a  consulate  or  a  consulate-general  is  not  b^ing  properly  conducted  and  that 
it  is  necessary  for  the  public  interest,  he  may  authorize  any  consul-general  at 
large  to  suspend  the  consul  or  consul-general,  and  administer  the  office  in  his 
stead  for  a  period  not  exceeding  ninety  days." 

See,  also.  Circular  to  American  diplomatic  officers  respecting  the  recognition 
of  consuls-general  at  large,  Aug.  24,  1906,  For.  Rel.  1906,  I,  6. 

"Consuls  are  of  two  kinds.  They  are  either  specially  sent  and  paid  for 
the  administration  of  their  consular  office  {Consules  missi),  or  they  are  ap- 
pointed from  individuals,  in  most  cases  merchants,  residing  in  the  district  for 
which  they  are  to  administer  the  consular  office  {Consules  electi).  Consuls 
of  the  first  kind,  who  are  so-called  professional  consuls  and  are  always  sub- 
jects of  the  sending  State,  have  to  devote  their  whole  time  to  the  consular 
office.  Consuls  of  the  second  kind,  who  may  or  may  not  be  subjects  of  the 
sending  State,  administer  the  consular  office  besides  following  their  ordinary 
callings.  Some  States,  such  as  France,  appoint  professional  consuls  only ; 
most  States,  however,  appoint  Consuls  of  both  kinds  according  to  the  impor- 
tance of  the  consular  districts.  But  there  is  a  general  tendency  with  most 
States  to  appoint  professional  consuls  for  important  districts."  Oppenheim, 
2  ed.,  I,  §  420.  Also  Art.  I,  declaration  of  the  Institute  of  International  Law, 
respecting  consular  immunities,  Sept.  26,  1896,  Annunire,  XV,  304. 

3  Rev.  Stats.  §  1674,  as  amended  by  §  6,  Act  of  Feb.  5,  1915,  Chap.  23, 
38  Stat.  806. 

*  Id.  According  to  Consular  Regulations  of  the  United  States  (1896),  §  20, 
consular  agents  "are  not  authorized  to  correspond  with  the  Department  of 
State,  unless  through  the  principal  or  under  exceptional  circumstances ;  they 
make  no  returns  or  reports  directly  to  the  Department ;  and  they  are  not  per- 
mitted to  render  accounts  or  make  any  drafts  for  expenditures  on  the  Depart- 
ments of  the  Government,  unless  under  express  instructions."  Moore,  Dig., 
V,  5. 

786 


CLASSES   AND    TITLES  [§460 

and  places  from  those  at  which  the  principals  are  located,  except 
that  when  vice-consuls  take  charge  of  consulates-general  or  con- 
sulates when  the  principal  officers  are  temporarily  absent  or  re- 
lieved from  duty,  they  are  to  be  deemed  to  denote  consular  officers 
substituted,  temporarily,  to  fill  the  places  of  said  consuls-general 
or  consuls.^ 

There  are  two  grades  of  vice-consuls  —  one  designated  vice- 
consuls  de  carriere,  vacancies  in  which  are  filled  by  promotions 
from  the  grades  of  consular  assistant  and  student  interpreter,  or 
by  the  appointment  of  candidates  who  have  satisfactorily  passed 
the  examination  for  consul  or  vice-consul  as  prescribed  by  executive 
order;  the  other,  vice-consul  not  of  career,  vacancies  in  which 
grade  being  filled  by  candidates  selected  by  the  Secretary  of  State, 
without  examination.^ 

By  reason  of  the  requirements  of  the  Constitution ,  the  Department 
of  State  has  always  held  that  no  one  can  be  lawfully  appointed 
to  a  position  in  the  American  consular  service  who  is  already 
holding  office  under  some  other  government,  and  that  the  accep- 
tance of  such  office  from  the  latter  serves  to  vacate  the  appoint- 
ment by  the  United  States.^  Under  special  circumstances  per- 
mission has,  however,  been  given  an  American  consular  officer 
to  exercise  his  good  offices  temporarily  in  behalf  of  the  nationals 
of  a  foreign  State  itself  unable  for  the  time  being  to  secure  adequate 
consular  representation  in  the  country  of  his  sojourn.^ 

1  Rev.  Stat.  §  1674,  as  amended  by  §  6,  Act  of  Feb.  5,  1915,  Chap.  23,  38 
Stat.  806.  Respecting  the  circumstances  when  an  American  naval  officer 
may  exercise  consular  functions,  see  Rev.  Stat.  §  1433 ;  also  Stockton,  Out- 
lines, p.  222. 

2  American  Consular  Service,  Dept.  of  State,  1920,  8 ;  also  Consular  Regu- 
lations, 1896,  paragraph  40,  as  amended  by  executive  order  of  Aug.  26,  1919. 
Vice-consuls  not  of  career  are  not  ehgible  to  promotion  to  the  grade  of  vice- 
consul  de  carriere  and  consul  without  undergoing  the  usual  examination. 

3  Mr.  Bacon,  Acting  Secy,  of  State,  to  Mr.  Brun,  Danish  Minister,  May  7, 
1906,  For.  Rel.  1906,  I,  534;   Constitution,  Art.  1,  Section  9,  paragraph  8. 

*  Correspondence  with  the  German  Embassy  at  Washington,  in  1909,  For. 
Rel.  1909,  265-268,  in  which  the  Department  of  State,  in  the  absence  of 
precedent,  hesitated  to  ask  the  requisite  authority  of  Congress  that  an  Ameri- 
can consular  agent  in  Syria  be  permitted  to  act  also  as  a  German  vice-consul. 
Pending  the  appointment  by  Germany  of  a  new  encumbent,  the  Department 
permitted  the  American  consular  agent  to  take  charge  of  German  interests. 


787 


TITLE    B 

§  461.   Appointment  of  American  Consular  Officers. 

American  consuls-general  at  large,  consuls-general  and  consuls 
are  appointed  by  the  President  by  and  with  the  advice  and  consent 
of  the  Senate.-^  Vice-consuls  and  consular  agents  are  appointed 
by  the  Secretary  of  State,  usually  upon  the  nomination  of  the 
principal  consular  oflEicer.^ 

Under  the  statutory  law,  latitude  is  given  the  President  in  the 
appointment  of  substitute  and  subordinate  consular  officers,  pro- 
vided such  appointments  conform  with  the  requirements  pre- 
scribed by  existing  executive  regulations.^  He  may,  for  example, 
appoint  a  vice-consul  to  perform  the  duties  of  the  office  in  case  of 
the  inability  of  the  encumbent,  by  reason  of  ill  health,  to  exercise 
his  consular  functions.^  The  President  may,  if,  in  his  judgment, 
the  good  of  the  service  so  requires,  designate  consuls  (without 
changing  their  classification)  to  act  for  a  period  not  to  exceed  one 
year,  as  vice-consuls.  When  so  acting  such  officers  are  not  deemed 
to  have  vacated  their  offices  as  consuls.^ 

In  case  of  emergency,  or  in  the  absence  of  a  consular  agent  on 
leave,  the  principal  consular  officer  maj'  designate,  w^ith  the  ap- 
proval of  the  Department  of  State,  a  suitable  person  to  perform 
the  duties,  under  the  title  of  consular  agent.^ 

^  Constitution,  Art.  II,  Section  2,  paragraph  2 ;  also  Moore,  Dig.,  V,  6 ; 
also  Consular  Regulations  of  the  United  States  (1896),  §  31. 

2  Consular  Regulations  of  the  United  States  (1896),  §  39,  wherein  it  is  also 
declared  that  "the  privilege  of  making  such  nominations  must  not  be  con- 
strued to  limit  the  authority  of  the  Secretary  of  State  to  appoint  these  officers 
without  such  previous  nomination  by  the  principal  officer.  The  statutory 
power  in  this  respect  is  reserved,  and  it  will  be  exercised  in  all  cases  in  which 
the  interests  of  the  service  or  other  public  reasons  may  be  deemed  to  require 
it.     R.  S.  sec.  1695 ;   15  Ct.  CI.  R.  64."     Moore,  Dig.,  V,  7. 

3  Rev.  Stat.  §  1695. 

^  United  States  v.  Eaton,  169  U.  S.  331,  Moore,  Dig.,  V,  8.  The  same  case 
affirmed  the  right  of  an  American  diplomatic  officer,  pursuant  to  the  Consular 
Regulations  of  1888  (§  87),  to  appoint  a  vice-consul-general  in  case  of  the 
inabiUty  of  a  consul-general,  by  reason  of  ill-health,  to  discharge  his  duties. 

5  §  3,  Chap.  1366,  Act  of  April  5,  1906,  34  Stat.  100,  U.  S.  Comp.  Stat. 
1918,  §  3140. 

^  Consular  Regulations  of  the  United  States  (1896),  §  21. 

788 


APPOINTMENT  OF  AMERICAN  CONSULAR  OFFICERS     [§  461 

The  Department  of  State,  while  not  regarding  the  statutory  law 
of  the  United  States  as  prohibiting  the  appointment  of  an  ahen 
as  a  consular  officer,  adverts  to  the  American  practice  to  commis- 
sion only  citizens  when  such  are  available.^  When  no  citizen  is 
available,  an  alien  may  be  appointed  to  a  subordinate  or  substi- 
tute position.^ 

1  Statement  in  Moore,  Dig.,  V,  11,  based  upon  Mr.  Adee,  Acting  Secy,  of 
State,  to  Mr.  Winchester,  Aug.  13,  1895,  204  MS.  Dom.  Let.  82. 

2  Id.  See  §  5,  Act  of  April  5,  1906,  34  Stat.  101,  prohibiting  the  appoint- 
ment of  any  person  not  an  American  citizen  in  any  consulate-general  or  con- 
sulate, to  any  clerical  position,  the  salary  of  which  is  one  thousand  dollars  a 
year  or  more.  Also  Mr.  Fish,  Secy,  of  State,  to  Mr.  Grover,  April  7,  1856, 
112  MS.  Dom.  Let.  586,  Moore,  Dig.,  V,  11,  respecting  the  serious  embarrass- 
ment oftentimes  resulting  from  the  appointment  of  naturalized  citizens  to 
consulates  within  the  country  of  their  nativity. 


789 


TITLE   C 

EXEQUATUR 

1 

§  462.   Nature  and  Effect.     Conditions  of  Issuance. 

The  right  of  a  consular  officer  to  exercise  his  functions  is  de- 
pendent upon  the  consent  of  the  government  in  control  of  the 
country  to  which  he  is  accredited.  In  times  of  peace  the  terri- 
torial sovereign  possessed  in  fact  of  supreme  control  within  its 
owTi  domain  is  the  political  entity  from  which  consent  must  be 
obtained.  In  seasons  of  war,  a  belligerent  power  occupjdng  ter- 
ritory of  its  enemy  may  demand  that  authority  for  the  exercise 
of  consular  functions  therein  shall  emanate  from  itself,  and  hence 
be  sought  and  granted  accordingly.^  The  act  of  seeking  and  re- 
ceiving of  such  authority  by  or  in  behalf  of  a  neutral  State,  is 
not  believed  to  be  necessarily  indicative  of  recognition  of  the  de 
jure  sovereignty  of  the  mUitarv^  occupant.- 

In  the  case  of  a  consul-general  or  consul,  the  consent  of  the  ter- 
ritorial sovereign  is  commonly  manifested  by  a  document  known 
as  an  exequatur,  which  expresses  formal  recognition  of  the  in- 
dividual as  a  consul,  bears  witness  to  the  fact  of  his  commission 
to  act  as  such  by  his  own  government,  and  permits  him  to  exer- 
cise his  functions  within  the  district  for  which  he  is  appointed.^ 

1  Belligerent  Occupation,  Neutral  Consuls,  infra,  Sec.  701. 

-  "The  request  for  an  exequatur  concerns  merely  the  performance  of  certain 
duties  by  a  United  States  officer  toward  the  vessels  and  citizens  of  the  United 
States,  with  the  permission  of  the  authority  in  actual  possession,  and  cannot 
be  assumed  to  imply  the  expression  of  any  opinion  as  to  the  right  of  possession 
or  to  operate  in  confirmation  of  a  claim  of  right.  Such  was  the  position  of 
the  United  States  in  obtaining  exequaturs  from  Nicaragua  for  a  consul  at 
Corn  Island ;  from  the  Hovas  government  for  a  consul  at  Madagascar  and 
from  Great  Britain  for  a  consul  at  Belize."  Moore,  Dig.,  V,  13,  citing  Mr. 
Rives,  Acting  Secv.  of  State,  to  Mr.  Hall.  Minister  to  Central  America,  No. 
638,  Nov.  12,  1888,  MS.  Inst.  Cent.  Am.,  XIX,  173. 

5  Stockton,  OutUnes,  225 ;  Hall,  Higgins'  7  ed.,  §  105. 

Declares  Stowell,  "The  true  nature  of  the  exequatur  is  that  of  a  contract 
between  the  foreign  State  and  the  recei\'ing  State,  and  its  object  is  to  permit 
the  consul  to  avail  himself  of  its  service  and  to  utihze  it  in  the  interest  of  both 
States."     Le  Consul,  209. 

A  foreign  consular  officer  possessing  an  unrevoked  exequatur  issued  by  the 
proper  authority  of  the  United  States  will  be  recognized  by  the  coxirts  as  the 

790 


NATURE   AXD    EFFECT  [§  462 

In  the  United  States,  exequaturs  are  signed  by  the  President 
and  bear  the  great  seal  of  the  United  States ;  they  are  issued  only 
to  foreign  consular  officers  possessing  or  exhibiting  a  regular  com- 
mission signed  by  the  chief  executive  of  the  appointing  State  and 
under  its  great  seal.^  They  are  not  issued  to  substitute  or  sub- 
ordinate officers  of  a  foreign  State.-  To  such  individuals  there  is 
issued  a  less  formal  document,  signed  by  the  Secretary  of  State 
and  bearing  the  seal  of  the  Department  of  State  .^ 

The  commission  of  an  American  consul-general  or  consul  after 
his  compliance  with  preliminary  requirements  relative  to  taking 
the  prescribed  oath  of  office  and  the  ffiing  and  approval  of  a  bond, 
is  transmitted  to  the  appropriate  diplomatic  representative  with 
instructions  to  apply  for  an  exequatur.  The  latter  document 
when  obtained  by  the  representative  is  transmitted  to  the  consul 
together  with  the  commission  through  the  medium  of  the  con- 
sulate-general, if  there  be  one  having  supervisory  powers ;  other- 
wise directly  to  the  consul's  address.'^  The  Department  of  State 
may  direct  a  consul  to  proceed  to  his  post  and  enter  upon  the  dis- 
charge of  his  duties  with  the  consent  of  the  local  authorities,  prior 
to  the  arrival  of  his  exequatur.^  If  the  United  States  be  without 
diplomatic  representation  in  the  foreign  country,  the  commission 
of  a  principal  consular  officer  will  be  delivered  or  sent  directly  to 
him,  with  instructions  to  transmit  it  without  delay,  on  arrival  at 
his  post,  to  the  proper  department  of  the  government,  and  to  re- 
quest an  exequatur.^ 

It  is  customary  to  transmit  to  the  diplomatic  representative, 
for  recognition  and  authority,  the  certificates  of  appointment  of 

accredited  representative  of  his  countrv-  entitled  to  all  of  the  privileges  per- 
taining to  the  consular  office,  even  though  the  government  which  sends  him 
has  been  overt hro^^Ti,  and  an  apparently  successful  revolutionarj'  government 
established  in  its  place.     United  States  v.  Trumbull.  48  Fed.  94. 

1  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Sherman.  Secv.  of  Treas.,  Dec.  12,  1879, 
131  MS.  Dom.  Let. '13,  Moore,  Dig.,  V,  14. 

The  issuance  of  an  exequatur  is  dependent  upon  the  submission  to  the 
President  of  the  consul's  commission  emanating  either  from  the  head  of  the 
appointing  State,  or  from  an  officer  thereof  known  to  possess  the  power  of 
appointing  consular  officers.  Mr.  McLane,  Secy,  of  State,  to  Mr.  Lederer, 
Austrian  consul-general,  Feb.  28,  1834,  MS.  Notes  to  For.  Legs.,  \,  168, 
Moore,  Dig.,  V,  1.5  ;  Mr.  Forsyth,  Secy,  of  State,  to  Baron  de  MareschaJ, 
Austrian  Minister,  March  21,  1839,  MS.  Notes  to  German  States,  VI,  51, 
Moore,  Dig.,  V,  16. 

-  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Shishkin,  "Russian  Minister,  Nov.  14, 
1879.  MS.  Notes  to  "Russian  Legation.  VII.  290,  Moore,  Dig.,  V,  15. 

3  Mr.  Evarts,  Secv.  of  State,  to  Mr.  Sherman,  Secv.  of  Treas.,  Dec.  12,  1879, 
131.  MS.  Dom.  Let.  13,  Moore,  Dig.,  V,  14;  Mr.  Forsjth,  Secy,  of  State,  to 
His  Highness  Prince  Metternich,  Dec.  26,  1834,  MS.  Notes  to  German  States, 
VI,  3;  Moore,  Dig.,  V,  16. 

*  Instructions  to  American  Consular  Officers  (1896).  §  48. 

6  Id.,  §  49.  6  Id.,  §  50. 

791 


§  462]  EXEQUATUR 

all  subordinate  American  officers  (except  those  of  consular  clerks, 
interpreters  and  marshals) ;  and  in  such  cases  the  subordinate 
officer  is  instructed  not  to  enter  upon  his  official  duties  before  re- 
ceiving recognition  from  either  the  government  or  local  author- 
ity of  the  country.^ 

With  respect  to  colonies  or  dependencies,  it  is  said  to  be  cus- 
tomary to  instruct  the  consul-general,  or  principal  consular  officer 
therein,  to  apply  to  the  proper  colonial  authority  for  permission 
for  the  newly  appointed  consular  officer  to  act  temporarily  in  his 
official  capacity,  pending  the  result  of  the  request  for  an  exequatur .^ 


§  463.   Refusal  or  Revocation. 

While  a  State  may  at  will  refuse  an  exequatur  to  a  foreign  consul,' 
this  right  is  rarely  exercised  by  the  United  States,^  except  for  cause, 
such  as,  for  example,  the  previous  misconduct  of  the  appointee, 
or  action  on  his  part  deemed  adverse  to  the  State .^ 

The  Department  of  State  declared  in  1897,  that  as  a  general 
rule  of  international  intercourse,  a  government  may  justly  re- 
voke an  exequatur  without  assigning  any  reason  for  so  doing; 
that  if  cause  is  assigned  for  revocation,  discussion  of  the  sufficiency 
thereof  is  invited,  and  opportunity  offered  for  the  presentation 
of  defensive  evidence  coupled  with  a  request  for  reconsideration 
of  the  action  taken ;  that  if,  however,  no  reasons  are  offered,  the 
State  revoking  the  exequatur  cannot  be  compelled  to  give  any.'' 
In  1908,  however,  the  Department  of  State  expressed  surprise  and 
regret  at  the  "abrupt  action"  of  Honduras  in  canceling  the  exequa- 
turs of  the  American  consul  and  vice-consul  at   Ceiba,  "with- 

1  Instructions  to  American  Con=!ular  Officers  (1896) ,  §  51 .  "The  certificates 
of  appointment  of  subordinate  officers  in  countries  in  which  the  United  States 
have  no  legation  are  sent  to  the  principal  officer,  with  instructions  to  request, 
from  the  proper  authority,  the  recognition  or  exequatur  accorded  to  such 
officers."     Id.,  §  52. 

^  Id.,  §  53.  "Upon  the  application  of  the  consular  officer,  or  of  the  consul- 
general  where  there  is  one,  the  diplomatic  representative  may  make  to  the 
minister  of  foreign  affairs  a  request  for  ternporary  permission  to  act  in  the  case 
of  any  consular  officer  under  his  jurisdiction."     Id.,  §  54. 

3  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Wheeler,  Minister  to  Nicaragua,  May  11, 
1855,  MS.  Inst.  Am.  States,  XV,  236,  Moore,  Dig.,  V,  28. 

*  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Morgan,  May  31,  1881,  MS.  Inst. 
Mexico,  XX,  267,  Moore,  Dig.,  V,  28. 

6  Mr.  Adee,  Second  Assist.  Secy,  of  State,  to  Mr.  Sickles,  Dec.  26,  1899,  MS. 
Inst.  Spain,  XXII,  658,  Moore,  Dig.,  V,  29. 

6  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Pringle,  American  Charge,  Aug.  18, 
1897,  For.  Rel.  1897,  338,  Moore,  Dig.,  V,  27 ;  Mr.  Seward,  Secy,  of  State,  to 
Baron  de  Wetterstedt,  April  23,  1866,  MS.  Notes  to  Sweden,  VI,  174,  Moore. 
Dig.  V,  23. 

792 


REFUSAL    OR    REVOCATION  [§  463 

out  customary  diplomatic  notification  "  to  the  United  States, 
"  and  without  opportunity  for  interchange  of  views  and  temperate 
investigation  of  the  facts."  It  was  urged  that  the  cancellation  of 
the  exequaturs  be  withdrawn,  and  that  any  complaint  which 
the  Government  of  Honduras  might  feel  constrained  to  make 
concerning  the  course  of  the  officers  in  question  "should  take  the 
appropriate  diplomatic  channel  of  investigation  and  amicable 
settlement."  ^     The  Honduranean  Government  yielded.^ 

The  revocation  of  his  exequatur  may  be  anticipated  as  the 
natural  consequence  of  certain  conduct  on  the  part  of  a  consul, 
such  as  the  commission  of  illegal  acts,^  or  manifest  hostility  to- 
wards the  State  of  his  sojourn  especially  when  it  is  engaged  in 
war,'^  or  the  endeavor  to  use  his  consular  position  to  defeat  the 
ends  of  justice  by  refusing  to  appear  as  a  witness  in  a  suit  pending 
against  himself.^ 

1  Mr.  Bacon,  Acting  Secy,  of  State,  to  the  Honduranean  Minister,  July  31, 
1908,  For.  Rel.  1908,  458,  where  it  was  also  said  :  "  It  is  very  unfortunate,  and 
in  some  regards  most  embarrassing,  that  a  question  of  this  character  should  be 
precipitated  at  a  moment  when  we  are  earnestly  acting,  coincidently  with 
Mexico,  in  the  interest  of  peace  in  Central  America.  ...  If  the  American 
consul  and  vice-consul  at  Ceiba  be  shown  to  have  done  any  act  contrarj'  to 
international  precept,  to  the  instructions  of  their  Government,  or  to  the  friendly 
and  impartial  purposes  of  the  United  States,  a  frank  ascertainment  of  the  facts, 
and  an  equally  frank  comparison  of  the  views  of  the  two  Governments  could 
hardly  fail  to  result  in  a  cordial  agreement  touching  the  course  to  be  pursued 
for  a  friendly  closure  of  the  incident.  Your  Government,  Mr.  Minister,  hke 
mine,  can  expect  nothing  less  than  fair  play  in  such  a  case,  and  it  certainly 
can  ask  no  more."  Also  Art.  5,  declaration  of  the  Institute  of  International 
Law,  Sept.  26,  1896,  Annuaire,  XV,  304. 

2  For.  Rel.  1908,  469;  id.,  456-470,  respecting  the  matter  generally. 

3  Coppell  V.  Hall,  7  Wall.  542,  Moore,  Dig.,  V,  19.  See,  also,  Mr.  Jefferson. 
Secy,  of  State,  to  Mr.  Duplaine,  Oct.  3,  1793,  Am.  State  Pap.,  For.  Rel.,  I,  178, 
Moore,  Dig.,  V,  19.  Also  Moore,  Dig.,  IV,  i^33-534,  and  documents  there 
cited,  concerning  the  revocation  of  the  exequaturs  of  three  British  Consuls 
in  1856,  on  account  of  their  violation  of  the  neutrality  laws  of  the  United 
States  during  the  Crimean  War. 

*  Case  of  Mr.  Bunch,  Moore,  Dig.,  V,  20-21,  and  documents  there  cited; 
Case  of  Mr.  Rogers,  Moore,  Dig.,  V,  22-23,  and  documents  there  cited ;  also 
Mr.  Fish,  Secy,  of  State,  to  Mr.  Stevens,  June  23,  1873,  MS.  Inst.  Paraguay, 
I,  163,  Moore,  Dig.,  V,  25. 

*  Janssen's  Case,  in  Report  of  Mr.  Seward,  Secy,  of  State,  to  the  President, 
March  28,  1867,  accompanying  message  of  President  Johnson  to  the  Senate, 
March  28,  1867,  S.  Ex.  Doc.  No.  1.  special  session  of  the  Senate,  6,  36,  38, 
Moore,  Dig.,  V,  23  ;  also  Mr.  Marcy,  Secy,  of  State,  to  Commander  Figaniere, 
Portuguese  Charge  d'Affaires,  Feb.  19,  1855,  MS.  Notes  to  Portugal,  VI, 
143,  Moore,  Dig.,  V,  20. 

Concerning  the  gross  misconduct  of  certain  German  consular  officers  in 
American  territory  while  the  United  States  was  a  neutral  with  respect  to  the 
World  War,  see  House  Report  No.  1,  65  Cong.,  I  Sess.,  Cong.  Record,  Vol. 
LV,  Part  1,  319,  321. 


793 


TITLE    D 
PRIVILEGES  AND  IMMUNITIES 


§  464.   Under  International  Law  and  Treaty. 

Consuls  are  not  diplomatic  officers,  and  cannot  of  right  claim 
the  privileges  and  immunities  accorded  the  latter.  Consuls  are, 
nevertheless,  officers  both  of  the  State  which  appoints  and  that 
which  receives  them.^  They  possess,  moreover,  a  certain  represen- 
tative character  as  affecting  the  commercial  interests  of  the  appoint- 
ing country.^  Such  officers  are  for  many  purposes  the  spokesmen 
of  their  fellow  countrymen  residing  in  the  same  district ;  and  upon 
the  death  of  the  latter  are  oftentimes  made  by  treaty  the  legal 
representatives  of  the  non-resident  heirs .^  The  right  of  inter- 
course with  local  authorities,  executive  or  judicial,  is  frequently 
expressly  acknowledged,'*  and  upon  occasion,  in  the  absence  of 
diplomatic  representation,  the  right  of  access  to  the  national  gov- 
ernment of  the  State.^ 

The  bare  authorization  of  a  consular  oflScer  to  perform  certain 
duties  commonly  entrusted  to  diplomatic  officers  does  not  serve 
to  attach  to  him  a  diplomatic  character,  or  to  clothe  him  with 
diplomatic  immunity.  A  foreign  consul  not  acknowledged  by 
the  Department  of  State  to  possess  the  character  of  a  public 

1  Consular  Regulations  of  the  United  States  (1896),  §  72.  See,  also,  Moore, 
Dig.,  V,  32y33,  and  documents  there  cited ;  The  Anne,  3  Wheat.  435,  445-446. 

Concerning  Consular  Jurisdiction  in  Oriental  and  Certain  Other  Countries, 
see  Extraterritorial  Jurisdiction,  supra,  §§  259-264. 

2  Consular  Regulations  of  the  United  States  (1896),  §  71. 

^  See,  for  example,  Art.  X,  consular  convention  with  the  German  Empire, 
Dec.  11,  1871,  Mallov's  Treaties,  I,  553;  Art.  XV,  consular  convention  with 
Belgium,  March  9,  1880,  id.,  I.  99. 

*  See,  for  example,  Art.  IX,  consular  convention  with  Sweden,  June  1,  1910, 
Charles'  Treaties,  114. 

*  Id. ;  also  Art.  VIII,  consular  convention  with  the  German  Empire,  Dec.  11, 
1871,  Malloy's  Treaties,  I,  552. 

It  is  oftentimes  provided  in  extradition  treaties  that  requisitions  for  the 
surrender  of  fugitives  from  justice  shall  be  made  by  consular  officers  of  the 
contracting  parties  in  the  absence  from  the  country  or  its  seat  of  government 
of  diplomatic  representatives.  See,  for  example.  Art.  Ill,  convention  with 
France,  Jan.  6,  1909,  Charles'  Treaties,  35.  Also  Consular  Regulations  of  the 
United  States  (1896),  §  71. 

794 


RESPECT   FOR    THE    CONSULAR    FUNCTION      [§  465 

minister  will  not  be  regarded  as  such  by  the  courts  of  the  United 
States.^ 


§  465.   Respect  for  the  Consular  Function. 

The  yielding  of  consular  privileges  and  immunities  is  for  the 
purpose  of  facilitating  the  performance  of  the  consular  function  .^ 
Such  performance  is  retarded  unless  respect  for  that  function  be 
maintained,  and  contempt  for  it  both  prevented  and  penalized.^ 
Respect  is  enhanced  by  provisions  in  numerous  conventions  of  the 
United  States  conferring  upon  a  consul  special  privileges,  such  as, 
for  example,  that  of  giving  his  testimony  in  a  civil  case,  at  his 
consulate  rather  than  in  open  court.^    The  consular  function  is 

1  In  re  Baiz,  135  U.  S.  403,  424,  431-432,  Moore,  Dig.,  IV,  650;  also  Mr. 
Foster,  Secy,  of  State,  to  Mr.  Heard,  No.  151,  Dip.  Series,  Oct.  31,  1892,  MS. 
Inst.  Corea,  I,  414,  Moore,  Dig.,  IV,  445. 

The  statutory  law  of  the  United  States  forbids  an  American  consular  officer 
to  exercise  diplomatic  functions,  or  to  hold  any  diplomatic  correspondence  or 
relation  on  the  part  of  the  United  States  in,  with  or  to  the  government  or 
country  to  which  he  is  appointed,  or  any  other  country  or  government,  when 
there  is  in  such  country  any  officer  of  the  United  States  authorized  to  perform 
diplomatic  functions  therein ;  or  in  any  case,  unless  expressly  authorized  by 
the  President  to  do  so.     Rev.  Stat.  §  1738. 

It  may  be  noted  that  Mr.  D.  C.  Poole,  Jr.,  a  consul,  was  accorded  the  "rank 
of  counselor"  and  assigned  to  the  American  Embassy  in  Russia  in  1918.  Dip- 
lomatic and  Consular  Service  of  the  United  States,  corrected  to  July  26,  1919. 

Concerning  the  situation  where  a  consular  office  is  formally  superadded  to 
the  diplomatic  office  filled  by  a  single  individual,  see  Diplomatic  Missions, 
Classification  of  Ministers,  supra,  §  411. 

2  Stowell,  Le  Consul,  139,  calhng  attention  to  Art.  XVI  of  the  Jay  Treaty 
with  Great  Britain,  of  Nov.  19,  1794,  Malloy's  Treaties,  I,  600. 

'  "Consuls  are  to  be  considered  as  distinguished  foreigners,  dignified  by  a 
commission  from  their  sovereign,  and  specially  recommended  by  him  to  the 
respect  of  the  nation  with  whom  they  reside.  They  are  subject  to  the  laws 
of  the  land  indeed  precisely  as  other  foreigners  are,  a  convention  where  there 
is  one  making  a  part  of  the  laws  of  the  land ;  but  if,  at  any  time,  their  conduct 
should  render  it  necessary  to  assert  the  authority  of  the  laws  over  them,  the 
rigor  of  those  laws  should  be  tempered  by  our  respect  for  their  sovereign,  as 
far  as  the  case  will  admit.  This  moderate  and  respectful  treatment  towards 
foreign  consuls  it  is  my  duty  to  recommend,  and  press  on  our  citizens,  because 
I  ask  it  for  their  good,  towards  our  own  consuls,  from  the  people  with  whom 
they  reside."  Communication  of  Mr.  Jefferson,  Secy,  for  Foreign  Affairs, 
to  Mr.  Newton,  Sept.  8,  1791,  4  MS.  Am.  Let.  283,  Moore,  Dig.,  V,  33. 

"Ministers  and  Consuls  of  foreign  nations  are  the  means  and  agents  of 
communication  between  us  and  those  nations,  and  it  is  of  the  utmost  im- 
portance that  while  residing  in  the  country  they  should  feel  a  perfect  security 
so  long  as  they  discharge  their  respective  duties  and  are  guilty  of  no  violation 
of  the  law  of  nations.  ...  As  in  war  the  bearers  of  flags  of  truce  are  sacred, 
or  else  wars  would  be  interminable,  so  in  peace  ambassadors,  pubUc  ministers, 
and  consuls,  charged  with  friendly  national  intercourse,  are  objects  of  especial 
respect  and  protection,  each  according  to  the  rights  belonging  to  his  rank 
and  station."  President  Fillmore,  Annual  Message,  Dec.  2,  1851,  Richardson's 
Messages,  V,  118. 

^  See,  for  example,  Art.  IV  of  consular  convention  with  Sweden,  June  1, 
1910,  Charles'  Treaties,  113;  Art.  IV  of  consular  convention  with  Belgium, 
March  9,  1880,  Malloy's  Treaties,  I,  95.     Also  infra,  §  476. 

795 


§465]  PRIVILEGES   AND   IMMUNITIES 

upheld  in  the  United  States  by  the  Federal  law  punishing  one  who 
falsely  assumes  or  pretends  to  be  a  consular  officer  of  a  foreign 
government  duly  accredited  as  such  to  the  Government  of  the 
United  States,  with  intent  to  defraud  such  government  or  any 
person,  and  takes  upon  himself  to  act  as  such  officer,  or  in  such 
pretended  character  demands  or  obtains,  or  attempts  to  obtain 
from  any  person  or  from  such  foreign  government,  or  from  any 
officer  thereof,  any  money,  paper,  document,  or  other  thing  of 
value.^  It  is  doubtless  also  possible  to  enjoin  one  who  interferes 
with  or  obstructs  the  performance  by  a  consul  of  his  official 
duties.^ 

In  their  intercourse  with  local  or  minor  officials  oftentimes 
ignorant  of  the  law  of  nations  and  of  the  terms  of  existing  con- 
ventions, consular  officers  are  not  infrequently  subjected  to  hu- 
miliation, and  occasionally  to  insult.^  When  a  foreign  consular 
officer  within  the  United  States  is  the  victim  of  such  treatment, 
there  appears  to  be  no  law  which  subjects  the  offender  to  criminal 
prosecution  in  the  Federal  courts.^  Frank  expression  of  regret 
is,  nevertheless,  to  be  anticipated  upon  reasonable  protest  duly 
lodged  with  the  superior  authorities.  State  or  Federal.  If,  be- 
cause of  the  absence  of  an  appropriate  statute  or  for  any  other 
reason,  the  State  authorities  are  unable  or  indisposed  to  inflict 
any  penalty  upon  the  offender,  the  country  to  which  the  consul 
belongs  may  justly  seek  redress  through  the  diplomatic  channel. 

1  Act  of  June  15,  1917,  Chap.  30,  title  VIII,  §  2,  40  Stat.  217,  226.  Also 
Von  Thororovitch  v.  Franz  Josef  Beneficial  Association,  154  Fed.  911.  See 
also  For.  Rel.  1906,  II,  931-934,  respecting  the  counterfeiting  of  the  American 
consular  seal  at  Palermo. 

2  If  the  consul  be  an  alien,  it  is  believed  that  he  may  rely  upon  paragraph  17, 
§  24,  Chap.  2,  of  the  Federal  Judicial  Code  of  Mar.  3,  1911,  conferring  original 
jurisdiction  upon  the  United  States  District  Courts,  "of  all  suits  brought  by 
any  alien  for  a  tort  only,  in  violation  of  the  laws  of  nations  or  of  a  treaty  of  the 
United  States."  Interference  with  the  performance  of  the  consular  functions 
of  one  empowered  to  exercise  the  same  by  the  State  to  which  he  is  appointed 
as  well  as  by  his  own  countrj',  violates  the  law  of  nations,  and  in  most  in- 
stances, also,  the  provisions  of  treaties  which  the  consular  officer  may  justly 
invoke. 

See,  also,  Act  No.  51  of  April  15,  1913,  Pennsylvania  Sess.  Laws  of  1913, 
making  it  under  certain  circumstances  unlawful  for  any  person,  firm  or  cor- 
poration to  use  the  word  "Consul"  or  "Consulate",  or  the  coat  of  arms  of  a 
foreign  country  for  exhibition,  display,  or  advertising  purposes,  and  providing 
a  penalty  therefor. 

^  For.' Rel.  1905,  517-524,  respecting  treatment  accorded  Mr.  Winslow  the 
American  Consul-General,  by  a  judge  of  the  first  instance  at  Guatemala,  in 
1905. 

*  Case  of  the  German  consul  at  Cincinnati,  Moore,  Dig.,  V,  41,  and  docu- 
ments there  cited;  also  Opinion  of  Mr.  Garland,  Atty.-Gen.,  May  5,  1887, 
respecting  the  operation  of  §  4062,  Rev.  Stats.,  19  Ops.  Attys.-Gen.,  16 ;  also 
Opinion  of  Mr.  Bradford,  Atty.-Gen..  1  Ops.  Attys.-Gen.  41. 

796 


PROTECTION  DUE  TO  CONSUL  [§467 

3 

§  466.   Protection  of  the  Person  of  a  Consul. 

To  enable  him  to  perform  his  official  duties  effectively  and  with- 
out molestation,  the  person  of  a  consul  as  well  as  his  reputation 
are  entitled  to  complete  protection.  The  State  to  which  he  is  ap- 
pointed should  make  the  utmost  endeavor  to  accord  it.  Neglect 
in  this  regard  always  evokes  protest  and  justifies  demands  for 
reparation.^ 

4 

§  467.   Protection  of  the  Consular  Archives  and  Dwelling. 

A  consul  may  claim  inviolability  for  the  archives  and  official 
property  of  his  office,  and  their  exemption  from  seizure  or  exami- 
nation.^ Such  inviolability  is  secured  by  numerous  treaties  of  the 
United  States.^  A  consul  is  also  protected  from  the  billeting  of 
soldiers  in  the  consular  residence.^     It  is  oftentimes  agreed  that 

1  Instances  are  numerous.  See  cases  in  Moore,  Dig.,  V,  42-48,  especially 
cases  in  Venezuela  in  1900,  For.  Rel.  1900,  943-953,  and  case  of  Riot  at  Mol- 
lendo,  Peru,  1893,  For.  Rel.  1893,  509-525. 

Declared  Mr.  Webster,  Secy,  of  State,  to  Mr.  Calderon  da  la  Barca,  Spanish 
Minister,  Nov.  13,  1851,  in  connection  with  the  riot  in  New  Orleans  in  1851 : 
"While  the  Government  has  manifested  a  willingness  and  determination  to 
perform  every  duty  which  one  friendly  nation  has  a  right  to  expect  from  an- 
other in  cases  of  this  kind,  it  supposes  that  the  rights  of  the  Spanish  consul, 
a  public  officer  residing  here  under  the  protection  of  the  United  States  Govern- 
ment, are  quite  different  from  those  of  the  Spanish  subjects  who  have  come 
into  the  country  to  mingle  with  our  own  citizens,  and  here  to  pursue  their 
private  business  and  objects.  The  former  may  claim  special  indemnity; 
the  latter  are  entitled  to  such  protection  as  is  afforded  to  our  own  citizens." 
6  Webster's  Works,  509,  511,  Moore,  Dig.,  VI,  812-813. 

Respecting  indignities  suffered  by  American  consular  officers  at  the  hands 
of  German  frontier  authorities  in  the  course  of  the  World  War  before  the 
United  States  became  a  belligerent,  see.  House  Report  No.  1,  65  Cong., 
I  Sess.,  Cong.  Record,  Vol.  LV,  319,  321. 

See,  also,  Mr  Hunter,  Acting  Secy,  of  State,  to  Mr.  Molina,  Aug.  6,  1852, 
MS.  Notes  to  Central  America,  1, 33,  Moore,  Dig.,  V,  48 ;  Case  of  Mr.  Jenkins, 
American  Consular  Agent  at  Puebla,  Mexico,  in  1919,  under  Claims,  supra, 
§  286 ;  E.  C.  Stowell,  The  Magee  Incident,  Washington,  1920,  illustrating 
from  Parliamentary  Papers,  1875,  Vol.  82,  how  Great  Britain  in  1874,  secured 
redress  for  the  ill-treatment  of  its  consular  representative  at  San  Jos6, 
Guatemala. 

2  Consular  Regulations  of  the  United  States  (1896),  §  73  ;  also  Mr.  Hunter, 
Acting  Secy,  of  State-,  to  Mr.  Molina,  Aug.  6,  1852,  MS.  Notes  to  Central 
America,  I,  33,  Moore,  Dig.,  V,  48  ;  case  of  outrage  on  the  American  Consulate 
at  Malaga,  April,  1898,  For.  Rel.  1898,  1078-1085,  Mootc,  Dig.,  V,  52-53  ; 
Arts.  9  and  10,  declaration  of  the  Institute  of  International  Law,  Sept.  26, 

1896,  XV,  Annuaire,  306. 

3  Art.  VI  of  the  consular  convention  with  Sweden  of  June  1,  1910,  Charles' 
Treaties,  114;  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Neill,  No.  250,  June  26, 

1897,  respecting  a  violation  by  local  authorities  at  Piura,  of  Art.  XXXI  of 
the  treatv  with  Peru,  of  Aug.  31,  1887,  MS.  Inst.  Peru,  XVIII,  37,  Moore, 
Dig.,  V,  52. 

*  Consular  Regulations  of  the  United  States  (1896),  §  73;  also  id.,  §  84, 
with  respect  to  certain  treaty  provisions. 

797 


§  467]  PRIVILEGES   AND   IMMUNITIES 

the  consular  office  and  dwelling  shall  at  all  times  be  inviolable, 
and  that  the  local  authorities  shall  not,  under  any  pretext,  invade 
them.^  Business  establishments  belonging  to  a  consul  and  separate 
from  the  consular  premises  are  not  inviolable.^  In  the  absence 
of  treaty,  the  territorial  sovereign  is  not  believed  to  be  shorn  of 
the  right  to  make  domiciliary  searches  or  serve  writs  of  judicial 
process  within  the  consular  offices  and  dwelling,  provided,  however, 
that  such  steps  are  taken  with  suitable  consideration  for  the  official 
position  of  the  consular  officer.^ 

Treaties  yielding  inviolability  of  the  consular  office  and  dwell- 
ing commonly  provide  also  that  they  shall,  under  no  circumstances, 
be  used  as  places  of  asylum."^  Hence  it  behooves  a  consul  not  to 
endeavor  to  shield  from  the  local  jurisdiction  any  employee  sought 
to  be  subjected  to  process,  but  rather,  upon  due  notice,  to  facilitate 
access  to  him,  by  placing  the  employee,  if  need  be,  outside  of  the 
consular  premises.^ 

In  1912,  the  Department  of  State  declared,  in  an  instruction 
for  the  guidance  of  the  American  consul  at  Vera  Cruz,  that  the 
United  States  does  not  claim  what  is  technically  known  as  the  right 
of  asylum  in  the  strictest  sense.  It  was  said,  however,  that  there 
is  "an  evident  distinction  between  cases  of  this  kind  and  cases 
in  which  temporary  refuge  is  given  in  order  to  preserve  innocent 
human  life."  In  those  of  the  latter  kind  the  Department  found 
it  expedient  to  give  a  certain  latitude  to  the  judgment  of  the  offi- 
cer who  might  be  called  upon  to  determine  within  his  discretion 
the  course  recommended  by  broad  considerations  of  humanity  in 

1  Consular  Regulations  of  the  United  States  (1896),  §  80;  also  Art.  VI,  con- 
vention with  Sweden,  June  1,  1910,  Charles'  Treaties,  114.  The  same  Article 
contains  also  the  common  provision  that  "when  a  consular  officer  is  engaged  in 
other  business,  the  papers  relating  to  the  consulate  shall  be  kept  separate." 
See  Myers'  Case,  arising  under  Art.  XXXV  of  the  treaty  with  Salvador  of  Dec. 
6,  1870,  Moore,  Dig.,  V,  51-52,  and  documents  there  cited;  also  Tourg^e's 
Case,  arising  under  Art.  Ill  of  consular  convention  with  France  of  Feb.  23, 
1853,  For.  Rel.  1900,  429-456,  Moore,  Dig.,  V,  53-54. 

According  to  Art.  V  of  the  consular  convention  with  Germany  of  Dec.  11, 
1871,  provision  as  to  inviolability  was  limited  to  "the  offices  and  dwellings 
of  Consuls  missi  who  are  not  citizens  of  the  country  of  their  residence."  Mal- 
loy's  Treaties,  I,  552. 

'2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Powell,  Minister  to  Haiti,  April  25,  1899, 
For.  Rel.  1899,  377,  Moore,  Dig.,  V,  55. 

'  Case  of  Invasion  by  Haitian  authorities  in  1899,  of  the  residence  of  the 
American  Deputy  Consul-General,  For.  Rel.  1899,  405-407,  Moore,  Dig.,  V, 
55-57. 

*  See,  for  example,  Art.  VI  of  consular  convention  with  Servia,  Oct.  14, 
1881,  Malloy's  Treaties,  II,  1619;  also,  in  this  connection,  Mr.  Hay,  Secy,  of 
State,  to  Mr.  White,  Ambassador  to  Germany,  March  6,  1899,  For. 'Rel.  1899, 
302,  Moore,  Dig.,  V,  82. 

^  Compare  Stowell,  Le  Consul,  154. 

798 


CORRESPONDENCE  [§  468 

each  individual  case.  It  was  accordingly  announced  as  the  gen- 
eral rule  of  the  Department  to  place  all  emphasis  upon  the  respon- 
sibility of  the  officer  concerned,  and  within  the  foregoing  limitations 
to  permit  him,  at  his  discretion,  to  afford  temporary  refuge  where 
such  might  be  necessary  to  preserve  innocent  human  life.^ 

5 

CORRESPONDENCE 

a 

§  468.   With  Governmental  Agencies  of  the  Consul's  State. 

A  consular  officer  is  believed  to  possess  the  right  of  free  com- 
munication with  his  own  government,  and  with  its  diplomatic 
or  consular  representatives  in  the  State  of  his  appointment.^  To 
that  end  he  may  avail  himself  of  the  post  or  telegraph.  When  so 
desired  his  communications  may  be  in  cipher.^ 

A  State  engaged  in  war  may,  however,  not  unreasonably  re- 
strict the  use  of  a  cipher  by  neutrals  to  messages  passing  between 
diplomatic  missions  and  their  respective  governments.^  Pur- 
suant to  such  regulations  a  cipher  telegram  from  the  American 
Minister  at  Peking  addressed  to  the  American  Consul-General  at 
Hong  Kong  was  obstructed  by  the  British  censor  at  that  place 
late  in  1914.  It  does  not  appear  that  the  United  States  deemed 
this  action  worthy  of  protest.^ 

Official  mail  bags  or  pouches  of  a  consular  officer  are  generally 

1  Mr.  Knox,  Secy,  of  State,  to  the  American  Charge  d'Affaires  in  Mexico, 
Oct.  29,  1912,  For.  Rel.  1912,  925;  Mr.  Adee,  Acting  Secy,  of  State,  to  the 
American  Vice-Coasul  at  Foochow,  Nov.  7,  1911,  For.  Rel.  1912,  174. 

-  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Shannon,  Minister  to  Central  '  merica, 
April  6,  1892,  invoking  Art.  XXXV  of  the  convention  with  Salvador  of  Dee.  6, 
1870,  For.  Rel.  1892,  34,  Moore,  Dig.,  V,  98.  A  consular  officer  doubtless 
possesses  also  the  right  of  communication  with  the  naval  forces  of  his  country 
in  the  waters  of  the  State  to  which  he  is  appointed. 

See  also  Art.  15,  declaration  of  the  Institute  of  International  Law,  Sept.  26, 
1896,  Annuaire,  XV,  307. 

Cooperation  ivith  tfw  Diplomatic  Service.  According  to  a  circular  instruction 
of  May  22,  1907,  an  American  diplomatic  officer  is  deemed  to  possess  general 
supervision  over  the  consular  .service  of  the  United  States  in  the  State  of  his 
residence.  Consular  officers  therein  are  to  report  to  him  all  political  informa- 
tion, and  all  contentions  which  are,  or  may  by  their  nature  become,  the  sub- 
ject of  diplomatic  action. 

3  Mr.  Olnev,  Secv.  of  State,  to  Mr.  Tavlor,  Minister  to  Spain,  telegram, 
Feb.  17,  1897,  For.  Rel.  1897,  501,  Moore,  Dig.,  V,  100. 

*  Mr.  W.  H.  Page,  American  Ambassador  to  Groat  Britain,  to  Secy,  of  State, 
telegram,  Aug.  27,  1914,  American  White  Book,  European  AVar,  II,  72. 

5  Same  to  Same,  telegram,  Dec.  29,  1914,  id.,  II,  86;  Acting  Secy,  of  State, 
to  Mr.  Reinsch,  American  Minister  to  China,  telegram,  Jan.  2,  1915J  id.,  II,  86. 

799 


§4t>8]  PRIVILEGES  AND   IMMUNITIES 

deemed  inviolable ;  ^  likewise  official  communications  addressed 
to  such  an  officer  from  agencies  of  his  own  government  or  other 
sources.  Such  inviolability  is  not,  however,  conceded  for  the 
personal  communications  to  or  from  a  consul,  in  relation,  for  ex- 
ample, to  his  own  commercial  transactions  in  the  country  of  his 
residence  and  outside  of  the  scope  of  his  official  duties.^ 

In  time  of  war  it  becomes  highly  desirable  to  establish  uniform 
regulations  for  transmission  of  the  correspondence  of  neutral 
consular  as  well  as  diplomatic  officers  in  belligerent  territory.  To 
such  an  end  the  United  States  on  November  25,  1914,  directed 
that  inquiry  be  made  of  the  Austro-Hungarian  Government  (and 
mutatis  mutandis,  of  that  of  other  belligerent  Powers),  whether 
it  would  agree  to  the  following  regulations  for  American  diplomatic 
and  consular  officers  in  Austria-Hungary : 

First,  all  correspondence  between  American  diplomatic  and 
consular  officers  within  Austrian  territory  to  be  inviolable  if 
under  seal  of  office ;  second,  no  correspondence  of  private  in- 
dividuals to  be  forwarded  by  diplomatic  and  consular  officers 
under  official  cover  or  seal ;  third,  official  correspondence  be- 
tween American  diplomatic  officers  residing  in  different  countries 
is  not  to  be  opened  or  molested  if  under  seal  of  office ;  fourth, 
official  correspondence  under  seal  of  office  between  Department 
of  State  and  American  diplomatic  and  consular  officers  is  not 
to  be  opened  or  molested ;  fifth,  pouches  under  seal  passing 
between  American  diplomatic  missions  by  mail  or  courier  not 
to  be  opened  or  molested ;  sixth,  correspondence  other  than 
that  described  in  foregoing  sent  by  ordinary  mail  to  be  subject 
to  usual  censorship.^ 
f 

The  Austro-Hungarian  Government  promptly  acquiesced,  and 
in   May,   1915,  the   Department   of   State   announced  that  the 

1  Case  of  mail  of  Mr.  Bunce,  British  Coasul  at  Charleston  in  1861,  Moore, 
Dig.,  V,  96,  and  documents  there  cited,  in  connection  with  which  Mr.  Seward, 
Secy,  of  State,  regarded  as  indefensible  the  enclosm-e  of  private  letters  by  the 
Consul  in  his  official  bag. 

2  Mr.  Uhl,  Acting  Secv.  of  State,  to  Mr.  Terres,  No.  113,  Dip.  Series,  Oct.  23, 
1895,  MS.  Inst.  Haiti,  III,  463,  Moore,  Dig.,  V,  99;  also  Mr.  Root,  Secy,  of 
State,  to  Mr.  Leishman,  Minister  to  Turkey  Feb.  24,  1906,  For.  Rel.  1906, 
II,  1416,  in  which  it  was  said  :  "The  department  is  inclined  to  take  your  view, 
that  circumspection  should  be  exercised  in  claiming  immunity  for  postal 
matter  not  obviously  official.  The  department  sedulously  guards  against 
needless  extension  of  the  privilege  of  immunity  to  include  matter  for  private 
purposes." 

'  Mr.  Bryan,  Secy,  of  State,  to  Mr.  Penfield,  American  Ambassador  to 
Austria-Hungary,  telegram,  Nov.  25,  1914,  American  'VMiite  Book,  European 
War,  II,  67. 

800 


INTERPOSITION    WITH    LOCAL   AUTHORITIES     [§  469 

arrangement  was  "apparently  working  out  satisfactorily."  ^  It  is 
understood  that  the  plan  was  acceptable  also  to  the  other  bellig- 
erent governments.^ 

b 

§  469.   Interposition  with  Local  Authorities. 

The  right  of  a  consular  officer  to  interpose  with  the  local  au- 
thorities for  the  protection  of  his  countrymen  from  unlawful  acts 
in  violation  of  a  treaty  or  of  principles  of  justice  has  been  declared 
by  the  Department  of  State  to  be  "so  generally  admitted  as  to 
form  an  accepted  doctrine  of  international  law."  ^  This  right  has 
received  recognition  in  consular  conventions  of  the  United  States.^ 
Although  the  matter  giving  rise  to  interposition  may  ultimately 
become  the  theme  of  diplomatic  negotiation,  that  possibility  does 
not  deprive  a  consul  of  the  right,  nor  absolve  him  from  the  duty 

1  Same  to  Same,  May  20,  1915,  id.,  II,  67. 

2  Id.,  enclosing  telegram  of  SecJ^  of  State,  to  Mr.  Sharp,  American  Am- 
bassador to  France,  April  23,  1915,  referring  to  Department's  circular  of 
Dec.  18,  1914,  and  embracing  the  following  rules  established  by  the  Depart- 
ment in  respect  to  diplomatic  and  consular  correspondence  : 

"1.  Communications  from  private  individuals  or  institutions  abroad  to 
private  individuals  or  institutions  in  United  States  should  not  be  sent  in  De- 
partment pouches. 

"2.  Personal  letters  from  United  States  Diplomatic  or  Consular  officers  or 
emploj'ees  of  American  missions  or  consulates  abroad  addressed  to  private 
individuals  in  United  States  may  be  sent  in  pouches  but  should  be  censored  by 
heads  of  missions  with  a  view  to  prevent  transmission  of  statements  which  would 
otherwise  be  censored  by  Governments,  and  should  be  left  unsealed  with  postage 
fully  prepaid. 

"3.  Official  correspondence  of  diplomatic  and  consular  officers  to  individuals 
outside  of  Department  should  be  marked  'Official  business',  and  should  be  left 
unsealed. 

"4.  Communications  from  nations  at  war  to  agents  in  the  United  States 
should  not  be  transmitted  through  pouches. 

"  5.  The  Department  reserves  right  to  censor  all  mail  received  in  the  pouches." 
See,  also,  Mr.  F.  W.  Seward,  Acting  Secy,  of  State,  to  Lord  Lyons,  British 
Minister,  Feb.  6,  1862,  Dip.  Cor.  1862,  253,  Moore,  Dig.,  V,  97;  Same  to 
Same,  Oct.  18,  1861,  Dip.  Cor.  1861,  174,  Moore,  Dig.,  V,  97.  See,  also. 
Special  Instructions  to  American  Diplomatic  and  Consular  Officers,  No.  486, 
Oct.  28,  1916 ;  Instructions  to  American  Diplomatic  Officers,  April  19, 
1917. 

3  Mr.  Olney,  Secy,  of  State,  to  Mr.  Dupuy  de  Lome,  Sept.  26,  1895,  For. 
Rel.  1895,  II,  1209,  Moore,  Dig.,  V,  102;  also  Von  Thororovich  v.  Franz  Josef 
Beneficial  Ass'n,  1.54  Fed.  911,  913. 

Declared  Mr.  Wilbur  J.  Carr,  of  the  Department  of  State  in  1907  :  "It  is 
the  duty  of  a  consul  to  endeavor  upon  all  occasions  to  maintain  and  promote 
all  the  rightful  interests  of  his  countrymen  ;  to  protect  them  in  all  the  privileges 
provided  for  by  treaty  or  conceded  by  u.sage;  and  to  aid  them  before  the  local 
authorities  of  the  foreign  country  in  all  cases  in  which  they  may  be  injured  or 
oppressed."     Am.  J.,  I,  891,  906. 

See,  also,  circular  instructions  to  American  consular  officers,  July  12,  1909, 
respecting  the  assistance  to  be  rendered  American  travelers. 

■•  See,  for  example.  Art.  VIII,  consular  convention  with  Germany,  Dec.  11, 
1871,  Mallov's  Treaties,  I,  552;  Art.  IX,  consular  convention  with  Serbia, 
Oct.  14,  1881,  id.,  II,  1620;  Art.  XXI,  treaty  with  Spain,  July  3.  1902,  id., 
II,  1707;  Art.  IX,  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  114. 

801 


§469]  PRIVILEGES   AND    IMMUNITIES 

of  initiating  such  inquiries  and  remonstrances  as  the  interests  en- 
trusted to  his  keeping  may  from  time  to  time  require.^  The  right 
of  interposition  is  beHeved  to  justify,  for  example,  courteous  in- 
quiry of  a  court  as  to  the  nature  of  an  offense  charged  against  a 
fellow  countryman,  or  as  to  the  status  of  a  pending  case,  even  in 
countries  where  the  preliminary  proceedings  in  criminal  cases 
are  secret.^  The  right  is,  however,  capable  of  abuse,  which  is 
apparent  when  a  consul  demands,  for  example,  information  un- 
related to  the  violation  of  a  treaty  or  of  international  law,  or  to 
the  protection  of  his  countrymen.^ 

When  upon  proper  occasion  a  consul  interposes  with  local  au- 
thorities, his  complaints  are  entitled  to  respectful  consideration  ; 
and  if  they  are  not  satisfactorily  redressed,  direct  application  to 
the  Government  of  the  country  is,  according  to  numerous  treaties, 
thereupon  justified.'* 

Foreign  consuls  in  the  United  States  have  at  times  availed 
themselves  of  the  right  of  interposition  by  appeals  to  the  judiciary 
committees  of  State  legislatures.  Such  action  has  been  for  the 
purpose  of  suggesting  the  enactment  of  laws  facilitating  the  exer- 
cise of  consular  rights  conferred  by  existing  conventions,  or  of 
explaining  the  nature  of  proposals  in  contravention  of  treaty  pro- 
visions, or  of  exposing  the  evils  (also  sought  to  be  prevented  by 
certain  agreements  of  the  United  States)  of  particular  discrimi- 
nations against  aliens  and  their  dependents,  both  resident  and  non- 
resident.    Such  participation  in  local  political  affairs  indicates,^ 

1  Mr.  Olney,  Secy,  of  State,  to  Mr.  Dupuy  de  Lome,  Spanish  minister, 
Oct.  11,  1895,  For.  Rel.  1895,  II,  1213,  Moore,  Dig.,  V,  103. 

According  to  Circular  Instructions  to  American  Consular  Officers  in  Mexico, 
Central  America  and  South  America,  Aug.  25,  1898,  it  was  declared:  "'It  is 
one  of  the  most  important  duties  of  consular  agents  as  well  as  of  consuls  to 
use  their  good  offices  in  behalf  of  American  citizens  and  for  the  protection  of 
their  interests,  and  it  is  confidently  believed  that  our  citizens  would  be  treated 
with  injustice  less  frequently  in  foreign  countries  if  it  were  known  and  felt  in 
each  community  that  the  nearest  consular  representative  of  the  United  States 
took  an  interest  in  every  American  citizen  in  his  district,  no  matter  how  humble, 
and  would  be  sure,  if  occasion  arose,  to  demand  justice." 

2  Mr.  Sherman,  Secy,  of  State,  to  Mr.  Sepulveda,  May  5,  1897,  For.  Rel. 
1897,  396,  Moore,  Dig.,  V,  106. 

According  to  Circular  Instructions  of  Dec.  12,  1909,  American  consular 
officers  were  directed  to  endeavor,  upon  request,  to  obtain  information  respect- 
ing the  enforcement  of  the  claims  of  American  Citizens. 

^  Mr.  Hav,  Secy,  of  State,  to  Mr.  Tower,  Ambassador  to  Germany,  No.  42, 
April  1,  1903,  For.  Rel.  1903,  447,  Moore,  Dig.,  V,  107. 

*  See,  for  example,  Art.  IX,  consular  convention  with  Sweden,  June  1,  1910, 
Charles'  Treaties,  114. 

*  In  the  course  of  the  enactment  of  so-called  workmen's  compensation  acts, 
consular  interposition  has  been  frequent  in  certain  States  of  the  Ignited  States, 
in  order  to  emphasize  the  equities  of  non-resident  alien  dependents,  and  also 
to  secure  recognition  of  consular  officers  as  legal  representatives  of  such  in- 
dividuals. 

802 


DISPLAY  OF  NATIONAL  ARMS  AND  FLAG         [§  470 

however,  no  impropriety  of  conduct  which  the  State  of  residence 
finds  just  cause  to  resent.  It  may  be  observed  that  legislative 
committees  have  on  numerous  occasions  given  heed  to  such  con- 
sular suggestions  which  have  at  times  been  incorporated  in  laws 
subsequently  enacted.^ 

6 

CERTAIN  ACCESSORY  PRIVILEGES 


§  470.   Display  of  National  Arms  and  Flag. 

It  has  been  announced  by  the  Department  of  State  that  a  consul 
may  place  the  arms  of  his  government  over  his  door.^  The  Ameri- 
can consular  officer  is,  however,  instructed  to  place  the  arms  of 
the  United  States  over  the  entrance  of  the  consulate  "  unless  pro- 
hibited by  the  laws  of  the  country."  ^  The  right  to  place  the 
national  arms  and  the  name  of  the  consulate  on  the  outer  door 
of  the  consular  offices  is  frequently  given  by  treaty.'* 

In  1912  the  Department  of  State  declared  that  the  display  by  a 
consul  of  the  flag  of  his  country  was  "  a  thing  which  may  be  properly 
claimed  as  a  right  under  international  law",  and  that  in  the  exer- 
cise of  it,  the  flag  might  be  displayed  at  all  times  and  not  merely 
on  certain  holidays.^ 

1  See,  for  example,  §  113  (5)  of  the  Employer's  Liability  Act  of  Nebraska 
of  1913;  also  §  23  of  the  Workmen's  Compensation  Law  of  Minnesota  (Chap. 
467,  General  L.,  1913),  as  amended  in  1915. 

A  foreign  consular  officer  on  one  occasion,  however,  exposed  himself  to 
criticism,  when,  after  having  been  appointed  administrator  of  the  estate  of  an 
American  citizen  Avho  had  died  domiciled  within  his  consular  district  and  on  the 
petition  of  resident  American  heirs,  he  subsequently  sought  to  make  use  of  his 
alienage  in  order  to  confer  jurisdiction  upon  a  Federal  court  in  a  suit  brought 
by  him  as  administrator.  Cerri  v.  Akron-People's  Telephone  Co.,  219  Fed. 
285,  294. 

2  Consular  Regulations  of  the  United  States  (1896),  §73;  also  Art.  14, 
Regulations  respecting  consular  immunities  adopted  by  the  Institute  of  Inter- 
national Law,  Sept.  26,  1896,  Annuaire.  XV,  307. 

'  Consular  Regulations  of  the  United  States  ( 1896) ,  §  70.  "As  to  the  display 
of  national  arms,  §§70  and  73  do  not  seem  to  be  entirely  consistent."  Moore, 
Dig.,  V,  57. 

•*  See,  for  example.  Art.  V,  consular  convention  with  Sweden,  June  1,  1910, 
Charles'  Treaties,  114.  The  right  to  place  the  national  arms  and  the  name  of 
the  consulate  on  the  consular  "dwellings"  was  also  conferred  by  Art.  IV,  con- 
sular convention  with  Germany,  Dec.  11,  1871,  Malloy's  Treaties,  I,  551. 

5  ]Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassador  at  Washington, 
June  21,  1912,  For.  Rel.  1912,  903.  Corn-pare  the  language  of  Consular  Regu- 
lations of  the  United  States  (1896),  §  73.  Id.,  §  70,  Moore,  Dig.,  V,  58,  and 
documents  there  cited. 

See  provisions  of  Art.  V  of  consular  convention  with  Sweden,  June  1,  1910, 
Charles'  Treaties,  114;  Display  of  Foreign  Flags,  supra,  §  212;  case  of  out- 
rage to  the  escutcheon  and  flag  of  the  German  Consulate  at  Lausanne  in 
January,  1916,  Rev.  Gm.,  XXIII,  340-345. 

803 


§471]  PRIVILEGES   AND    IMMUNITIES 


§  471.    Ceremonial  and  Rank. 

It  is  doubtless  true  that  "consuls  have  no  claim,  under  inter- 
national law,  to  any  formal  ceremonial,  and  no  right  of  precedence 
except  among  themselves,  and  in  their  relation  to  the  military  and 
naval  officers  of  their  own  country."  ^  Nevertheless,  in  certain 
States  such  as  the  United  States,  where  a  foreign  consul  is  often- 
times the  chief  representative  of  his  government  within  a  wide 
territorial  area,  and  is  burdened  with  vast  responsibilities  in  re- 
lation to  a  numerous  population  of  his  countrymen  residing  within 
his  district,  he  becomes  increasingly  regarded  as  a  high  official 
entitled  to  special  marks  of  courtesy. 

As  a  matter  of  domestic  policy  the  United  States  has  found  it 
wise  to  indicate  a  correspondence  of  rank  between  American  con- 
sular and  American  naval  or  military  officers ;  ^  and  also  to  pre- 
scribe certain  rules  of  conduct  respecting  official  intercourse  of 
officers  of  the  former  with  those  of  the  latter  services.^  That  an 
American  consul-general  is  given  rank  with,  but  next  after,  a 
brigadier-general  of  the  Army,  and  a  rank  intermediate  between 
a  rear-admiral  and  a  captain  in  the  Navy,  is  significant  estimate 
of  the  dignity  attached  to  the  highest  consular  office.'* 


§  472.   Exemption  from  Taxation. 

It  has  been  declared  by  the  Department  of  State  as  recently 
as  1909,  that  in  the  absence  of  treaty,  a  foreign  State  is  not  under 
any  legal  obligation  to  exempt  an  American  consular  officer  from 
the  payment  of  a  tax  upon  his  private  income,  even  though  de- 
rived from  property  situated  in  the  United  States.^  Hence,  any 
exemption  of  such  an  officer  from  a  tax  upon  his  private  income 
derived  from  property  located  outside  of  the  territory  of  the  taxing 

^  Consular  Regulations  of  the  United  States  (1896),  §  76,  where  it  is  also 
declared  that  "this  precedence,  as  to  officers  of  the  same  grade  in  the  consular 
body  of  the  place,  depends  upon  the  date  of  the  respective  exequaturs.  1 
Halleck,  ch.  11,  sec.  7." 

2  Compare  Mr.  Hav,  Secv.  of  State,  to  Gov.  Allen  (Porto  Rico),  May  23, 
1900,  245  MS.  Dom.  Let.  230,  Moore,  Dig.,  V,  59. 

3  Consular  Regulations  of  the  United  States  (1896),  §§  109-113,  440-442; 
also  Circular  Instruction,  Jan.  22,  1908,  amending  §  441. 

*  Circular  Instruction,  Jan.  22,  1908,  amending  §  441,  Consular  Regulations 
of  the  United  States  (1896).  According  to  the  amendatory  instruction,  on 
occasions  of  ceremony,  other  than  purely  diplomatic  functions,  a  consul- 
general  is  given  a  rank  with,  but  next  before,  a  first  secretary  of  an  embassy. 

^  Memorandum  of  the  law  officer  of  the  Department  of  State  on  the  pay- 
ment of  income  taxes  by  American  consular  ofiicers  in  Great  Britain,  March  1, 

804 


EXEMPTION  FROM  TAXATION  [§  472 

State  must  be  sought  upon  "grounds  of  international  comity 
and  reciprocal  favor."  ^  A  State  is  not,  however,  believed  to 
possess  the  right  to  tax  the  official  income  of  a  foreign  consul, 
unless  he  is  one  of  its  own  nationals.^ 

The  right  to  tax  the  private  immovable  property  of  a  foreign 
consul,  as  well  as  his  private  movable  property  or  incorporeal 
property,  which  may  be  fairl}^  said  to  belong,  for  purposes  of  taxa- 
tion, within  the  taxing  State,  is  not  open  to  doubt. 

By  treaty  broad  exemptions  are  habitually  conceded.  Consular 
conventions  of  the  United  States  purport  to  exempt  a  consul  who 
is  a  national  of  the  appointing  State,  from  all  personal  or  property 
taxes,  except  such  as  are  due  on  account  of  the  possession  of  real 
property  in,  or  for  interest  on  capital  invested  in  the  country  where 
the  consul  exercises  his  functions.^  Such  exemptions  are,  however, 
commonly  declared  to  be  inapplicable  to  consular  officers  engaged 
in  any  profession,  business  or  trade.  Engagement  therein  is  said 
to  subject  them  to  the  same  taxes  that  would  be  paid  by  any 
other  foreigner  under  like  circumstances.^  It  may  be  doubted 
whether  the  act  of  engaging  in  an  occupation  alien  to  the  consular 
service  should  in  itself  serve  to  subject  the  officer  to  the  payment 
of  a  tax  upon  his  official  income,  if  any.^ 

1909,  enclosed  in  instruction  of  Mr.  Knox,  Secy,  of  State,  to  Mr.  Reid,  Am- 
bassador to  Great  Britain,  April  21,  1909,  For.  Rel.  1909,  284. 

Compare  Art.  13,  declaration  of  the  Institute  of  International  Law,  respect- 
ing Consular  Immunities,  Sept.  26,  1896,  Annuaire,  XV,  306. 

Exemption  from,  Military  or  Naval  Service.  In  order  to  prevent  interference 
with  the  performance  of  their  official  duties,  consuls,  at  least  when  nationals 
of  the  State  by  which  they  are  appointed,  should  be  exempt  from  any  military 
or  naval  service.  Numerous  treaties  of  the  United  States  so  provide.  See, 
for  example.  Art.  Ill,  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  113. 

1  Mr.  Knox,  Secy,  of  State,  to  Mr.  Reid,  Ambassador  to  Great  Britain, 
April  21,  1909,  For.  Rel.  1909,  284.  Indicating  inability  on  the  part  of  the 
British  Government  to  exempt  from  taxation  the  private  income  of  foreign 
consular  officers  derived  from  property  abroad,  see  Mr.  Reid,  Ambassador  to 
Great  Britain,  to  Mr.  Knox,  Secy,  of  State,  June  18,  1909,  id.,  286. 

-  Mr.  Frelinghuvsen,  Secy,  of  State,  to  Mr.  de  Struve,  Russian  Minister, 
April  21,  1884,  MS.  Notes  to  Russia,  VII,  449,  Moore,  Dig.,  V,  87;  also  Mr. 
Seward,  Secy,  of  State,  to  Mr.  Chase,  Sept.  23,  1863,  62  MS.  Dom.  Let.  9, 
Moore,  Dig.,  V,  87. 

^  See,  for  example,  Art.  Ill,  consular  convention  with  Sweden,  June  1,  1910, 
Charles'  Treaties,  113.  In  that  Article  there  is  also  embraced  within  the 
exception  "income  from  pensions  of  public  or  private  nature  enjoyed  from" 
the  country  wherein  the  consul  exercises  his  functions. 

^  Thus  Art.  Ill  of  the  consular  convention  with  Germany  of  Dec.  11,  1871, 
contained  the  wise  provision  that  "under  no  circumstances  shall  their  official 
income  be  subject  to  any  tax."  Mallov's  Treaties,  I,  551.  See,  also.  For. 
Rel.  1901,  172-173,  Moore,  Dig.,  V,  88-89,  respecting  the  liability  of  em- 
ployees of  American  consulates  in  Germany  to  the  German  compulsory  in- 
surance act. 

805 


§473]  PRIVILEGES   AND   IMMUNITIES 

d 

§  473.    Customs  Duties. 

It  is  not  believed  that  foreign  consular  officers  possess  the  right 
of  free  entry  for  goods  sent  to  them  for  their  personal  use,  or  for 
their  personal  effects  even  upon  first  arrival  in  the  country  to 
which  they  are  appointed.^ 

The  Government  of  the  United  States  does,  however,  extend  the 
privileges  of  free  entry  and  exemption  from  examination  to  the 
baggage  and  effects  of  foreign  consular  officers  (including  their 
families  and  suites),  whose  governments  grant  reciprocal  privileges 
of  free  entry  to  American  officers  of  like  grade  accredited  thereto.^ 
All  official  supplies  of  whatever  nature  sent  by  foreign  govern- 
ments to  their  consular  officers  in  the  United  States  are  also  ad- 
mitted free  of  duty.^  The  Department  of  State  is,  nevertheless, 
of  the  opinion  that  the  extension  of  these  courtesies  and  privileges 
should  be  based  upon  the  principle  of  reciprocity.'* 

7 
AMENABILITY   TO   LOCAL  PROCESS 

a 

§  474.   Civil  Process. 

A  foreign  consular  officer  is  not,  according  to  the  law  of  nations, 
exempt  from  the  local  jurisdiction.  The  territorial  sovereign  is  not 
obliged  to  yield  to  him  so  great  a  privilege.     He  is  amenable  to 

1  Mr.  Bayard,  Secy,  of  State,  to  Mr.  Cox,  Nov.  6,  1885,  MS.  Inst.  Turkey, 
IV,  305,  Moore,  Dig.,  V,  90;  also  Mr.  Moore,  Assist.  Secv.  of  State,  to  Mr. 
Cafiero,  May  11,  1898,  MS.  Notes  to  For.  Consuls,  IV,  413,  Moore,  Dig.,  V, 

The  more  recent  consular  conventions  of  the  United  States  do  not  purport 
to  exempt  consular  officers  from  customs  duties.  That  Art.  II  of  the  consular 
convention  with  Austria-Hungary,  July  11,  1870,  exempting  consular  officers 
under  certain  circumstances  "from  all  direct  and  personal  taxation,  whether 
federal,  state  or  municipal",  did  not  embrace  customs  duties,  see  Mr.  Bavard, 
Secy,  of  State,  to  Mr.  Lee,  Charge,  No.  16,  Nov.  6,  1885,  MS.  Inst.  Austria- 
Hungary,  III,  371,  Moore,  Dig.,  V,  90.  Corn-pare  Article  XVII,  treaty  with 
Tunis,  August,  1797,  Malloy's  Treaties,  II,  1798,  superseded  by  treaty  with 
France,  of  March  15,  1904,  id.,  I,  544. 

2  Instructions  of  Mr.  Curtis,  Assist.  Secy,  of  the  Treasury,  to  Collectors  of 
Customs,  Oct.  19,  1911,  T.  D.  31934,  Treasury  Decisions,  XXI,  No.  17,  p.  7; 
Art.  376  of  Customs  Regulations  of  1915,  as  amended  Oct.  4,  1920. 

See,  also.  Diplomatic  Intercourse  of  States,  Customs  Duties,  supra,  §  441. 

3  Circular  Instruction  of  Mr.  Wilson,  Acting  Secy,  of  State,  to  American 
Diplomatic  Officers,  Sept.  12,  1911. 

806 


CRIMINAL   PROCESS  [§  475 

civil  process.^     Such  amenability  implies  an  obligation  to  submit 
to  an  adjudication  when  he  is  duly  served.^ 

Difficulties  arise,  however,  with  respect  to  the  service  of  process. 
To  subject  a  consular  officer  to  the  jurisdiction  of  a  particular 
tribunal  by  personal  service  upon  him  within  his  consular  offices 
or  dwelling,  appears  to  be  incompatible  with  the  common  treaty 
provision  declaring  such  places  to  be  inviolable.^  A  consul  should 
not  attempt  to  escape  service  by  taking  refuge  in  his  consulate. 
Should  he  do  so,  however,  the  agreement  to  regard  it  as  inviolable 
should  not  be  disregarded.  The  territorial  so\'ereign  by  threaten- 
ing to  withdraw  his  exequatur,  or  by  complaint  to  his  government, 
is  never  without  the  means  of  causing  such  an  officer  to  place 
himself  within  the  reach  of  the  local  courts.'* 

b 

§  475.    Criminal  Process. 

Because  amenable  to  the  local  jurisdiction,  a  consular  officer 
finds  himself  subject  to  arrest  when  charged  with  offenses  which, 
according  to  the  local  law,  are  rendered  criminal,  and  for  the 
commission  of  which  the  offender  is  made  punishable.^     Consular 

1  Opinion  of  Mr.  Lee,  Atty.-Gen.,  Nov.  21,  1797,  1  Ops.  Attys.-Geu.  77, 
Stowell's  Cases,  465,  Moore,  Dig.,  V,  72;  Opinion  of  Mr.  Wirt,  Attv.-Gen., 
Dec.  1,  1820,  1  Ops.  Attys.-Gen.  406,  Stowell's  Cases,  467,  Moore,  Dig.,  V, 
73;  Caldwell  v.  Barclay,  1  Dall.  305,  Stowell's  Cases,  86,  Moore,  Dig.,  V,  62. 

See,  also,  Mr.  Adee,  Second  Assist.  Secv.  of  State,  to  Messrs.  Hensel,  Bruck- 
mann  &  Lorbacher,  Oct.  29,  1897,  MS.^Dom.  Let.  81,  Moore,  Dig.,  V,  64; 
Mr.  F.  W.  Seward,  Assist.  Secy,  of  State,  to  the  Fifth  Auditor  of  the  Treasury, 
March  23,  1861,  .53  MS.  Dom.  Let.  507,  Moore,  Dig.,  V,  62;  Case  of  American 
Vice-Consul  at  Dresden  in  1910,  For.  Rel.  1910,  522-523. 

See  Arts.  IV-VIII  of  declaration  of  the  Institute  of  International  Law 
respecting  consular  immunities,  Sept.  26,  1896,  Annuaire,  XV,  305. 

2  See,  for  example,  Jones  v.  Le  Tombe,  3  Dall.  384,  Stowell's  Cases,  199, 
Moore,  Dig.,  V,  62.  Also  case  of  attempted  service  of  a  writ  in  a  libel  .suit 
upon  the  Consul  General  of  Italy  at  Denver  in  1909 ;  also  opinion  of  Solicitor 
of  the  Department  of  State,  concerning  the  matter,  Jan.  27,  1910,  enclosed  in 
communication  of  Mr.  Knox,  Secv.  of  State,  to  Mr.  Leishman,  American 
Ambassador  to  Italy,  Jan.  31,  1910,  For.  Rel.  1910,  674.  Also  same  to  the 
Italian  Ambassador,  Jan.  13,  1910,  id.,  673. 

^  Mr.  Hay,  Secv.  of  State,  to  Mr.  WTiite,  Ambassador  to  Germany,  March  6, 
1899,  For.  Rel.  1899,  302,  Moore,  Dig.,  V,  82. 

^  Note  the  argument  of  Mr.  Marcy,  Secy,  of  State,  to  Mr.  Figaniere,  Portu- 
guese Charge  d' Affaires,  March  27,  1855,  MS.  Notes  to  Portugal,  VI,  145, 
Moore,  Dig.,  V,  80-81. 

5  United  States  v.  Ravara  and  Reporter's  Note  thereon,  2  Dall.  297,  299, 
Stowell's  Cases,  415,  417,  Moore,  Dig.,  V,  55;  Opinion  of  Mr.  Gushing,  Atty.- 
Gen.,  7  Ops.  Attys.-Gen.  367,  384,  Stowell's  Cases,  548,  552,  Moore,  Dig.,  V, 
70. 

See,  also,  Mr.  Monroe,  Secy  of  State,  to  Mr.  Harris,  Charge  d'Affaires  at 
St.  Petersburg,  Dec.  23,  1815,"  with  respect  to  Kosloff's  Case,  MS.  Inst.  U.  S. 
Ministers,  VIII,  17,  Moore,  Dig.,  V,  66;  Same  to  Same,  July  31,  1816,  MS. 
Inst.  U.  S.  Ministers,  VIII,  89,  Moore,  Dig.,  V,  67 ;   Mr.  Olney,  Secy,  of  State, 

807 


§475]  PRIVILEGES  AND   IMMUNITIES 

conventions  of  the  United  States  commonly  limit  any  immunity 
from  arrest  to  cases  where  the  act  charged  against  the  officer  does 
not  possess  a  criminal  character.^  The  arrest  and  confinement 
of  a  consul  when  subjected  to  the  local  jurisdiction  on  merely  a 
civil  complaint  is  thereby  sought  to  be  avoided.^ 


§  476.   The  Giving  of  Testimony. 

Exemption  from  the  obligation  to  appear  as  a  witness  except 
for  the  defense  of  persons  charged  with  crime,  is  secured  by  nu- 
merous consular  conventions  of  the  United  States.^  The  Depart- 
to  Moustapha  Bey,  Turkish  Minister,  Feb.  19,  1897,  For.  Rel.  1897,  583, 
Moore,  Dig.,  V,  72. 

Compare  Art.  VII,  of  the  declaration  of  the  Institute  of  International  Law 
respecting  consular  immunities,  Sept.  26,  1896,  Annvxiire,  XV,  305. 

1  See,  for  example,  Art.  Ill  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  113. 

2  Croxall's  Case,  Moore,  Dig.,  V,  68-70,  citing  Mr.  Forsyth,  Secy,  of  State, 
to  Mr.  Cass,  Minister  to  France,  No.  6,  Dec.  6,  1836,  and  No.  19,  April  13, 
1838,  MS.  Inst.  France,  XIV,  220,  239. 

Jurisdiction  of  Courts  in  the  United  States.  According  to  §  256  of  the  Fed- 
eral Judicial  Code,  Act  of  March  3,  1911,  Chap.  231,  "the  jurisdiction  vested 
in  the  courts  of  the  United  States  in  the  cases  and  proceedings  hereinafter 
mentioned,  shall  be  exclusive  of  the  courts  of  the  several  States  :  .  .  .  Eighth. 
Of  all  suits  and  proceedings  against  ambassadors,  or  other  public  ministers, 
or  their  domestics,  or  domestic  servants,  or  against  consuls  or  vice-consuls." 
36  Stat.  1160.  Respecting  the  legislation  of  the  United  States  prior  to  the 
enactment  of  this  law,  see  Moore,  Dig.,  V,  72-78. 

According  to  par.  18  of  §  24,  Chap.  II,  of  the  Judicial  Code,  the  United 
States  District  Courts  are  given  original  jurisdiction  "of  all  suits  against 
consuls  and  vice-consuls."     36  Stat.  1093. 

^  Consular  Regulations  of  the  LTnited  States  (1896),  §  82,  Moore,  Dig.,  V, 
78;  also  Art.  IV  of  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  113. 

See  Art.  VIII  of  Declaration  of  the  Institute  of  International  Law  in  respect 
to  consular  immunities,  Sept.  26,  1896,  Annuaire,  XV,  305,  J.  B.  Scott, 
Resolutions,  125. 

Criminal  Cases.  According  to  Art.  II  of  the  consular  convention  with 
France,  Feb.  25,  1853,  it  is  provided  that  consular  officers  of  the  contract- 
ing States  "shall  never  be  compelled  to  appear  as  witnesses  before  the  courts. 
When  any  declaration  for  judicial  purposes,  or  deposition,  is  to  be  received 
from  them  in  the  administration  of  justice,  they  shall  be  invited,  in  writing, 
to  appear  in  court,  and  if  unable  to  do  so,  their  testimony  shall  be  requested 
in  writing,  or  be  taken  orally  at  their  dweUings."  Malloy's  Treaties,  1,529. 
Respecting  the  exemption  of  a  French  consul  under  this  convention  from  the 
duty  to  testify  as  a  witness  for  the  defense  in  a  criminal  case,  notwithstanding 
the  Sixth  Amendment  to  the  Constitution  of  the  United  States,  securing  to 
persons  accused  of  crime  the  right  of  compulsory  process  for  obtaining  wit- 
nesses in  their  favor,  see  In  re  Dillon,  7  Sawyer,  561,  Moore,  Dig.,  V,  78-81, 
and  documents  there  cited ;  United  States'  v.  Trumbull,  48  Fed.  94.  An 
agreement  that  even  under  the  special  circumstances  specified  in  the  con- 
vention with  France,  a  foreign  consul  is  exempt  from  the  obligation  to  appear 
as  a  witness,  might  be  at  variance  with  the  Sixth  Amendment,  if  the  latter 
were  given  a  literal  interpretation.  If,  however,  as  was  held  bj'  Hofi'man,  J., 
in  Dillon's  Case,  the  Amendment  was  designed  merely  to  place  the  accused 

808 


IN  GENERAL  [§  477 

ment  of  State  is  of  opinion  that  a  convention  providing  for  the 
inviolability  of  the  consular  archives  is  rendered  nugatory  if  a 
consular  officer  may  be  compelled  to  disclose  their  contents  by 
his  testiniony  in  a  local  forum. ^  According  to  Secretary  Hay, 
such  an  officer  cannot  justly  be  required  to  divulge  information 
coming  to  him  in  his  official  capacity,  "for  that  is  the  exclusive 
property  of  his  government;"  ^  but  that  as  to  matters  within  his 
personal  knowledge  or  observation  in  his  mere  capacity  as  an  in- 
dividual, he  is  not  privileged  from  testifying  as  a  witness.^ 


PRIVILEGES  IN  RELATION  TO  DECEASED  COUNTRYMEN 

a 

§  477.   In  General. 

Upon  the  death  of  a  countryman  within  the  consular  district, 
a  consular  officer  is  accorded  by  international  law,  and  even 
more  broadly  by  treaty,  extensive  privileges.  These  concern 
notification   of  the   consul  by  local  authorities  of  the  fact  of 

in  the  same  position  in  making  his  defense,  as  the  Government  occupied  in 
endeavoring  to  estabUsh  his  guilt,  the  bare  removal  of  the  consular  officer 
beyond  reach  of  the  court's  process,  by  virtue  of  a  treaty,  would  do  no  violence 
to  the  Amendment. 

In  order  to  avoid  controversies,  such  as  that  arising  from  Dillon's  Case, 
Art.  IV  of  the  consular  convention  with  Sweden,  June  1,  1910,  provides  that 
"in  all  criminal  cases,  contemplated  by  the  Sixth  Article  of  the  amendments 
to  the  Constitution  of  the  United  States,  whereby  the  right  is  secured  to  persons 
charged  with  crimes  to  obtain  witnesses  in  their  favor,  the  appearance  in  court 
of  said  consular  officers,  shall  be  demanded,  with  all  possible  regard  to  the 
consular  dignity  and  to  the  duties  of  his  office,  and  it  shall  be  the  duty  of  such 
officer  to  comply  with  said  demand.  A  similar  treatment  shall  also  be  ex- 
tended to  the  consuls  of  the  United  States  in  Sweden,  in  the  like  cases." 
Charles'  Treaties,  113. 

1  Mr.  Hay,  Secy,  of  State,  to  Mr.  White,  Ambassador  to  Germany,  March  6, 
1899,  respecting  Guenther's  Case,  For.  Rel.  1899,  302,  Moore,  Dig.,  V,  82. 

Also  Case  of  the  American  consular  officer  at  Solingen,  in  1905,  For.  Rel. 
1905,  458-460. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Merry,  Minister  to  Nicaragua,  April  17, 
1899,  For.  Rel.  1899,  566,  Moore,  Dig.,  V,  84-85;  also  Mr.  Rockhill,  Third 
Assistant  Secy,  of  State,  to  Mr.  Mason,  U.  S.  consul,  July  31,  1894,  For.  Rel. 
1899,  304,  Moore,  Dig.,  V,  83;  Mr.  Blaine,  Secy,  of  State,  to  Mr.  Phelps, 
No.  178,  Dec.  17,  1890,  and  No.  196,  Jan.  29,  1891,  MS.  Inst.  Germany, 
XVIII,  389,  403,  Moore,  Dig.,  V,  83. 

^  Mr.  Hav,  Secy,  of  State,  to  Mr.  Merry,  Minister  to  Nicaragua,  April  17, 
1899,  For.  Rel.  1899,  566-568,  Moore,  Dig.,  V,  84.  In  the  same  Instruction 
it  is  declared  that  a  consul  is  not  to  refuse  to  testify  because  the  facts  to  which 
he  is  required  to  testify  might  be  of  a  political  character,  or  simply  because  his 
testimony  might  haye  a  tendency  to  implicate  American  citizens  or  others  in 
the  commission  of  unlawful  acts.  See,  also,  in  this  connection,  Mr.  Merry, 
Minister  to  Nicaragua,  to  Mr.  Hay,  Secy,  of  State,  May  9,  1899,  For.  Rel. 
1899,  583,  Moore,  Dig.,  V,  85. 

809 


§477]  PRIVILEGES   AND   IMMUNITIES 

death ;  the  taking  charge  of  or  placing  the  consular  seal  upon  the 
assets  of  the  decedent  pending  the  appointment  of  an  adminis- 
trator ;  the  administration  of  the  estate  of  the  decedent ;  and  the 
distribution  to  foreign  heirs  in  the  State  to  which  the  c'onsul  be- 
longs, either  of  property  of  the  estate,  or  of  pecuniary  benefits 
due  them  by  reason  of  their  connection  with  or  dependence  upon 
the  decedent. 

The  foregoing  privileges  are  of  great  importance  to  foreign  con- 
suls in  the  United  States,  and  particularly  to  those  within  whose 
consular  districts  reside  large  numbers  of  their  fellow-countrymen, 
engaged  in  industrial  occupations  in  the  course  of  which  death  is 
frequently  encountered.  Such  persons  oftentimes  leave  surviv- 
ing heirs  or  dependents  residing  in  the  country  to  which  they 
owe  allegiance.  The  proper  protection  of  the  interests  of  the  non- 
resident heirs  or  dependents  renders  it  expedient,  and  at  times 
imperative,  that  a  consular  representative  should  automatically, 
and  by  virtue  of  the  law,  act  in  their  behalf.^ 


§  478.   Notification  of  the  Deaths  of  Fellow-Countrymen. 

Numerous  conventions  of  the  United  States  have  provided 
that  in  case  of  the  death  of  a  citizen  of  either  contracting  party 
within  territory  belonging  to  the  other,  who  has  no  known  or  testa- 
mentary executor  designated  by  him,  the  competent  local  authori- 
ties shall  give  notice  of  the  fact  to  the  consular  representative 
of  the  State  of  the  deceased,  that  information  may  be  at  once 
transmitted  to  the  parties  interested.^  In  the  absence  of  local 
laws  imposing  a  duty  upon  specified  officials  to  make  the  requisite 
notification,  foreign  consuls  in  the  United  States  oftentimes  fail 
to  learn  of  the  deaths  of  their  intestate  fellow-countrymen  residing 
within  the  same  consular  district.  Upon  complaint  made  through 
the  diplomatic  channel,  the  Department  of  State  has  on  more  than 

1  The  helplessness  of  non-resident  dependents  has  oftentimes  been  utilized 
by  local  agencies  which,  when  fortified  by  powers  of  attorney,  have  served 
bheir  principals  without  zeal  or  scruple,  and  with  vigorous  opposition  to  the 
endeavors  of  the  consular  representative  of  the  decedent  to  obtain  justice 
in  behalf  of  those  who  suffered  pecuniary  loss  through  his  demise. 

2  See,  for  example.  Art.  XVI,  consular  convention  with  Austria-Hungary, 
July  11,  1870,  Malloy's  Treaties,  I,  44;  Art.  X,  consular  convention  with 
Germany,  Dec.  11,  1871,  id.,  I,  553;  Art.  XVI,  consular  convention  with 
Italy,  May  8,  1878,  id.  I,  982 ;  Art.  XV,  consular  convention  with  Belgium, 
March  9,  1880,  id.,  I,  99;  Art.  XXVI,  treaty  with  Spain,  July  3,  1902,  id.,  II, 
1709;  Art.  XIV,  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  117. 

810 


TEMPORARY  POSSESSION  OF  ASSETS  [§  479 

one  occasion  formally  communicated  with  the  governors  of  the 
several  States  (excepting  those  of  States  whose  statutory  law  made 
appropriate  provision),  requesting  that  the  terms  of  the  particular 
treaty  invoked  be  brought  to  the  attention  of  the  "competent 
local  authorities",  in  order  that  the  stipulation  with  respect  to 
consular  notification  be  complied  with.^  The  failure  of  certain 
States  generally  to  deal  with  the  matter  by  appropriate  legisla- 
tion has  served  to  leave  the  international  obligation  unfulfilled,- 
and  to  suggest  the  importance  if  not  the  necessity  of  a  Federal 
law  making  uniform  and  adequate  provision  responsive  to  the 
formal  undertaking  of  the  United  States. 

According  to  instructions  issued  in  1914,  the  Department  of 
State  declared  it  to  be  the  duty  of  an  American  consul  to  take  such 
steps  as  might  be  practicable  to  insure  his  being  informed  of  the 
deaths  of  Americans  that  might  occur  within  his  district,  whether 
or  not,  under  the  regulations,  he  was  called  upon  to  take  charge 
of  the  effects  or  administer  the  estate.^ 


§  479.   Temporary  Possession  of  the  Assets  of  an  Estate. 

Official  opinion  in  the  United  States  has  lacked  uniformity  with 
respect  to  the  right  of  a  consul,  in  the  absence  of  treaty,  to  take 
even  temporary  possession  of  the  assets  of  the  estate  of  a  deceased 
and  intestate  countryman.  It  was  announced  by  Secretary  Clay 
in  1827,  that  such  an  officer  might,  according  to  the  prevailing 
practice,  put  his  ofiicial  seal  upon  the  effects  of  the  deceased 
until  the  local  law  operated  upon  them  by  the  grant  of  administra- 
tion, or  if  no  administration  were  granted,  for  the  purpose  of  trans- 
mission to  the  kindred  of  the  deceased.^    Much  the  same  idea  had 

1  See,  for  example,  Mr.  Adee,  Acting  Secy,  of  State,  June  27,  1907,  to  the 
Governors  of  the  States,  For.  Rel.  1907,  I,  53. 

2  See,  however,  §  12151,  Vol.  5,  Michigan  Annotated  Statutes,  imposing 
upon  judges  of  probate,  in  connection  with  the  application  for  letters  of  ad- 
ministration, the  duty  to  notify  the  appropriate  consular  officer;  also  §  7231, 
Minnesota  Gen.  Stat.  1913.  According  to  §  20A,  Act  of  April  21,  1915, 
amending  Chap.  467,  Minnesota  General  Laws  of  1913,  provision  is  made  in 
the  Workmen's  Compensation  Act,  that  in  case  a  decedent  be  a  native  of  c 
foreign  country  leaving  no  known  dependents  within  the  United  States,  "it 
shall  be  the  duty  of  the  department  of  labor  to  give  written  notice  of  said 
death  to  the  consul  or  other  representative  of  said  foreign  country  forthwith." 

3  Circular  Instructions  to  American  Consular  Officers,  July  25,  1914. 
According  to  Circular  Instructions  of  June  3,  1914,   American  consular 

officers  are  directed  to  make  report  of  American  citizens  injured,  killed  or 
saved  in  calamities  or  disasters. 

"  Communication  to  Mr.  Vaughan,  British  Minister,  Nov.  12,  1827,  MS. 
Notes  to  For.  Legs.,  Ill,  400,  Moore,  Dig.,  V,  117. 

811 


§4791  PRIVILEGES   AND   IMMUNITIES 

been  expressed  by  Secretary  Pickering  in  1799.^  Secretary  Marcy, 
in  1855,  went  so  far  as  to  declare  that  American  consuls  were  "au- 
thorized and  required  to  act  as  administrators  on  the  estates  of 
all  citizens  of  the  United  States  dying  intestate  in  foreign  coun- 
tries and  leaving  no  legal  representative  or  partner  in  trade."  ^ 

The  Supreme  Court  of  the  United  States  in  1912  announced  it 
to  be  "  the  universally  recognized  right  of  a  consul  to  temporarily 
possess  the  estate  of  a  citizen  of  his  nation  for  the  purpose  of  pro- 
tecting and  conserving  the  rights  of  those  interested  before  it 
comes  under  the  jiu^isdiction  of  the  laws  of  the  country  for  its 
administration,"  ^ 

The  statutory  law  of  the  United  States  prescribing  the  duties 
of  American  consular  officers  appears  to  make  the  right  of  a  con- 
sul to  take  even  temporary  possession  of  the  assets  of  an  estate, 
inventory  the  same,  and  perform  other  sp)ecified  acts,  dependent 
upon  the  consent  of  the  territorial   sovereign.'*     The  Consular 

1  Communication  to  Mr.  Smith,  May  13,  1799,  11  MS.  Dom.  Let.  324, 
Moore,  Dig.,  V,  117. 

2  Communication  to  Mr.  Aspinwall,  Aug.  21,  1855,  44  MS.  Dom.  Let.  270, 
Moore,  Dig.,  V,  118.  The  Secretary's  statement  should,  however,  as  was  sug- 
gested by  the  Supreme  Court  of  the  United  States,  in  Rocca  v.  Thompson, 
223  U.  S.  317,  327,  be  read  in  the  Hght  of  the  existing  statutory  law  of  the 
United  States  (§  1709,  Rev.  Stat.),  which  did  not  contemplate  the  assertion 
of  a  right  of  consular  administration  which  the  local  law  did  not  permit. 

3  Rocca  V.  Thompson,  223  U.  S.  317,  331.  Similarly  it  was  declared  by  the 
Court  of  Appeals  of  New  York  in  1914,  that  "the  function  of  consuls  is  to 
preserve  derelict  estates.  When  their  countrymen  die  in  foreign  lands  it  is 
their  duty  to  step  in  and  guard  the  stranded  property  from  waste.  This  right 
belongs  to  them,  irrespective  of  express  statute  or  treaty,  by  virtue  of  their 
office."     Matter  of  D'Adamo,  212  N.  Y.  214,  223. 

«  §  1709,  Rev.  Stat,  provides  that : 

"  It  shall  be  the  duty  of  consuls  and  vice-consuls,  where  the  laws  of  the  country 
permit :  _ 

"First.  To  take  possession  of  the  personal  estate  left  by  any  citizen  of  the 
United  States,  other  than  seamen  belonging  to  any  vessel,  who  shall  die  within 
their  consulate,  leaving  there  no  legal  representative,  partner  in  trade,  or  trustee 
by  him  appointed  to  take  care  of  his  effects. 

"Second.  To  inventory  the  same  with  the  assistance  of  two  merchants  of 
the  United  States,  or,  for  want  of  them,  of  any  others  at  their  choice. 

"Third.  To  collect  the  debts  due  the  deceased  in  the  country  where  he  died, 
and  pay  the  debts  due  from  his  estate  which  he  shall  have  there  contracted. 

"Fourth.  To  sell  at  auction,  after  reasonable  public  notice,  such  part  of  the 
estate  as  shall  be  of  a  perishable  nature,  and  such  further  part,  if  any,  as  shall  be 
necessary  for  the  payment  of  his  debts,  and,  at  the  expiration  of  one  year  from  his 
decease,  the  residue. 

"  Fifth.  To  transmit  the  balance  of  the  estate  to  the  Treasury  of  the  United 
States,  to  be  holden  in  trust  for  the  legal  claimant ;  except  that  if  at  any  time  before 
such  transmission  the  legal  representative  of  the  deceased  shall  appear  and  de- 
mand his  effects  in  their  hands  they  shall  deliver  them  up,  being  paid  their  fees, 
and  shall  cease  their  proceedings." 

Mr.  Cushing,  Atty.-Gen.,  in  the  course  of  an  opinion,  Sept.  12,  1856,  de- 
clared that  "Sundry  legislative  acts  of  the  United  States,  proceed  on  the  as- 
sumption that  American  consuls,  in  foreign  countries,  will  collect  and  remit 
the  assets  of  deceased  Americans.  Their  authority  to  do  this  will  depend,  of 
course,  on  the  law  of  the  foreign  country.  If  permitted  by  that  law,  and  so  far 
as  permitted,  the  consul  may  do  it,  but  not  otherwise,  nor  further,  unless  al- 

812 


ADMINISTRATION  OF  ESTATES  [§  480 

Regulations  of  the  United  States  of  1896  announced  that  by  the 
law  of  nations  as  well  as  by  statute  a  consular  officer  was  the  "  pro- 
visional conservator  of  the  property  within  his  district  belonging 
to  his  countrymen  deceased  therein."  ^  In  1903,  Secretary  Hay, 
having  in  mind  the  views  of  Attorney-General  Gushing  expressed 
in  1855  and  1856,  respecting  the  statutory  law,  said  that  the  power 
and  duty  to  guard,  collect  and  transmit  the  assets  of  an  estate 
were  not  exclusive;  and  that  if  those  powers  were  not  conferred 
by  treaties  or  by  the  local  law  or  usage,  it  became  the  consul's 
"alternative  duty  to  aid  others  upon  whom  those  functions  de- 
volve under  local  law."  ^  This  view  prevails  at  the  present  time. 
American  consular  officers  are  instructed  to  exercise  greatest  care 
not  to  exceed  powers  granted  by  treaty  or  "by  local  statute."  ^ 

It  may  be  observed  that  certain  conventions  of  the  United  States 
declare,  in  various  form,  that,  so  far  as  the  laws  of  the  contracting 
parties  will  permit,  a  consular  officer  may  take  temporary  posses- 
sion of  the  assets  of  the  estate  of  a  deceased  intestate  countryman, 
pending  (as  is  specified  in  one  instance)  the  appointment  of  an 
administrator.^ 


§  480.   Administration  of  Estates. 

It  is  not  believed  that  in  the  absence  of  agreement  a  consular 
oflBcer  is  possessed  of  an  exclusive  right  to  administer  the  estate 

lowed  by  treaty.  And  so  it  is  with  respect  to  foreign  consuls  in  the  States  of 
the  Union."  8  Ops.  Attys.-Gen.  98,  100,  Stowell's  Cases,  568,  570.  See, 
also,  Opinion  of  Mr.  Gushing,  Atty.-Gen.,  June  2,  1855,  7  Ops.  Attys.-Gen. 
242,  274,  Stowell's  Cases,  511,  538. 

1  §  409,  wherein  it  was  also  declared  that  "  He  (a  consular  officer)  has  no  right, 
as  a  consular  officer,  apart  from  the  provisions  of  treaty,  local  law,  or  usage, 
to  administer  on  the  estate,  or  in  that  character  to  aid  any  other  person  in  so 
administering  it,  without  judicial  authorization.  His  duties  are  restricted  to 
guarding  and  collecting  the  effects,  and  to  transmitting  them  to  the  United 
States,  or  to  aid  others  in  so  guarding,  collecting  and  transmitting  them,  to 
be  disposed  of  pursuant  to  the  law  of  the  decedent's  state  —  7  Ops.  Attys.- 
Gen.  274.  It  is,  however,  generally  conceded  that  a  consular  officer  may 
intervene  by  way  of  observing  the  proceedings,  and  that  he  may  be  present 
on  the  making  of  the  inventory." 

2  Communication  to  Mr.  White,  Charge  at  London,  No.  1109,  Jan.  15,  1903, 
For.  Rel.  1903,  487,  Moore,  Dig.,  V,  123. 

3  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Sands,  Minister  to  Guatemala, 
No.  6,  Oct.  12,  1909,  For.  Rel.  1909,  346,  347. 

*  Art.  XIV,  consular  convention  with  Sweden,  June  1,  1910,  Charles, 
Treaties,  117;  Art.  X,  treaty  of  friendship  with  Paraguay,  Feb.  4,  1859,  Mal- 
loy's  Treaties,  II,  1367.  See,  also,  the  provisions  of  par.  10,  Art.  Ill,  con- 
sular convention  with  Colombia,  May  4,  1850,  Malloy's  Treaties,  I,  316; 
Art.  VIII,  treaty  of  friendship  with  Costa  Rica  (followed  in  later  treaties  with 
Honduras  and  Nicaragua),  July  10,  1851,  id.,  I,  344;  Art.  XXVII,  treaty  of 
friendship  with  Spain,  July  3,  1902,  id.,  II,  1709.  Compare  the  provisions  of 
Art.  VI,  treaty  of  friendship  with  Persia,  Dec.  13,  1856,  id.,  II,  1373. 

813 


§480]  PRIVILEGES  AND   IMMUNITIES 

of  a  deceased  intestate  countryman.  In  the  United  States  the 
right  to  administer  property  left  by  a  foreigner  within  the  terri- 
tory of  any  State  of  the  Union  is  "primarily  committed  to  State 
law."  *  Various  treaties  of  the  United  States,  the  interpretation 
of  which  has  become  the  subject  of  frequent  adjudication  in  Ameri- 
can courts,  have  purported  to  confer  upon  consular  officers  certain 
privileges  of  administration. 

According  to  Art.  IX  of  the  treaty  with  the  Argentine  Republic 
of  July  27,  1853,  a  consular  officer  was  given  "  the  right  to  inter- 
vene in  the  possession,  administration  and  judicial  liquidation  of 
the  estate  [of  a  deceased  intestate  countryman]  conformably  with 
the  laws  of  the  country,  for  the  benefit  of  the  creditors  and  legal 
heirs."  ^  In  1912,  the  Supreme  Court  of  the  United  States  de- 
clared that  the  treaty  did  not  take  away  from  the  States  the  right 
of  local  administration  provided  by  their  laws,  upon  the  estates 
of  deceased  citizens  of  a  foreign  country,  and  did  not  commit  the 
same  to  consular  officers  of  that  country,  to  the  exclusion  of  per- 
sons entitled  to  administer  by  the  local  laws  of  the  State  in  which 
the  foreign  decedent  died  and  left  property.^  It  was  not  intimated 
that  the  President  with  the  approval  of  the  Senate  lacked  the 
constitutional  power  to  conclude,  in  behalf  of  the  United  States, 
a  treaty  conferring  upon  a  foreign  consul  an  exclusive  right  to 
administer.^  The  sole  question  was  whether  such  a  right  had  in 
fact  been  conferred  by  the  terms  of  the  particular  convention; 
and  that  was  decidedly  negatively. 

According  to  Article  X  of  the  treaty  of  friendship  with  Paraguay 
of  February  4,  1859,  a  consular  officer,  in  the  event  of  the  death 
of  an  intestate  countryman,  "shall,  so  far  as  the  laws  of  each 
country  will  permit,  take  charge  of  the  property  which  the  de- 
ceased may  have  left,  for  the  benefit  of  his  lawful  heirs  and  cred- 
itors, until  an  executor  or  administrator  be  named  by  the  said 

1  Rocca  V.  Thompson,  223  U.  S.  317,  329.  See,  also,  Pagano  v.  Cerri,  93 
Ohio  S.  345,  112  N.  E.  1037. 

2  Malloy's  Treaties,  I,  23. 

3  Rocca  V.  Thompson,  223  U.  S.  317,  affirming  In  the  Matter  of  the  Estate 
of  Ghio,  157  Cal.  552.  Compare  In  re  Wyman,  191  Mass.  276,  Stowell's  Cases, 
460 ;  In  re  Lobrasciano's  Estate,  77  N.  Y.  Supp.  1040,  Stowell's  Cases,  235  ; 
Carpigiani  v.  Hall,  172  Ala.  287.  See,  also,  "Rights  of  Consular  Officers  to 
Letters  of  Administration  under  Treaties  with  Foreign  Nations",  by  Frederic 
R.  Coudert,  Col.  Law  Rev.,  XIII,  181 ;  Ernest  Ludwig,  Consular  Treaty  Rights, 
108-115;  For.  Rel.  1908,  6-9,  respecting  consular  jurisdiction  under  Art.  IX 
of  the  treaty  of  July  27,  1853,  over  estates  of  American  citizens  dying  in  the 
Argentine  Republic. 

^  "  We  cannot  feel  that  the  Court  had  any  real  doubt  as  to  the  constitution- 
ality of  a  treaty  granting  to  Consuls  the  right  to  administer  upon  the  estates 
of  their  deceased  nationals  for  the  benefit  of  foreign  heirs."  Frederic  R. 
Coudert,  in  Col.  Law  Rev.,  XIII,  181,  185. 

814 


ADMINISTRATION  OF  ESTATES  [§  480 

Consul-General,  Consul  or  Vice-Consul,  or  his  representative."* 
In  1914,  the  Court  of  Appeals  of  New  York  expressed  the  opinion 
that  the  words  "so  far  as  the  laws  of  each  country  will  permit" 
must  be  deemed  to  qualify  the  right  of  a  consular  officer  to  name 
an  executor  or  administrator,  as  well  as  his  right  of  temporary 
custody.^ 

By  Article  XXXIX  of  the  treaty  of  friendship  with  Peru,  of 
July  26,  1851,  it  was  agreed  that  pending  the  conclusion  of  a  con- 
sular convention,  in  the  absence  of  legal  heirs  or  representatives, 
"  the  Consuls  or  Vice  Consuls  of  either  party  shall  be  ex  officio  the 
executors  or  administrators  of  the  citizens  of  their  nation  who 
may  die  within  their  consular  jurisdictions,  and  of  their  country- 
men dying  at  sea,  whose  property  may  be  brought  \\ithin  their 
district."  ^  The  same  language  was  employed  in  Article  XXX\T[  of 
the  treaty  with  Peru  of  September  6,  1870,^  and  in  Article  XXXIII 
of  the  treaty  with  the  same  State  of  August  31,  1887.^  All  of 
these  treaties  have  long  since  been  terminated.^  It  may  be  ob- 
served, however,  that  a  mixed  commission  under  the  claims  con- 
vention with  Peru,  of  January  12,  1863,^  made  an  award  against 
the  United  States  by  reason  of  Ihe  detention  of  the  goods  of  a 
deceased  Peruvian  citizen  from  the  Peruvian  consul  in  New  York 
in  violation  of  the  treaty  of  July  26, 1851.^ 

According  to  Article  VI  of  the  treaty  of  friendship  with  Persia, 
of  December  13,  1856,  it  was  provided  that  in  case  of  the  death  of 

»  Malloy's  Treaties,  II,  1367. 

2  Matter  of  D'Adamo,  212  N.  Y.  214,  230-231,  where  the  court  practically 
overruled  the  conflicting  opinion  of  the  Surrogate  of  New  York  County  in 
In  re  BagUeri's  Estate,  137  N.  Y.  Supp.  175.  The  Court  of  Appeals  adverted 
to  the  f!:^xt  that  the  Paraguayan  treaty  was  before  the  Supreme  Coiu-t  of  the 
Uniter,  States  when  it  decided  Rocca  v.  Thompson,  and  "though  not  men- 
tioned in  the  opinion,  must  have  been  held  unavailing  to  establish  an  ex- 
clusive right  in  favor  of  the  Italian  consul." 

3  Malloy's  Treaties,  II,  1400. 
*  Id.,  II,  1425. 

« Id.,  II,  1441.  Mr.  Justice  Day,  in  Rocca  v.  Thompson,  223  U.  S.  317, 
332,  adverted  to  Art.  XXXIII  of  the  treaty  with  Peru  of  Aug.  31,  1887,  as  an 
instance  where  it  had  been  the  purpose  of  the  United  States  to  commit  the 
administration  of  estates  of  citizens  of  one  country,  dying  in  another,  exclu- 
sively to  a  consular  officer. 

8  Malloy's  Treaties,  II,  1388,  note  a,  1414,  note  a,  and  1431,  note  a. 

7  Id.,  II,  1408. 

8  Moore,  Arbitrations,  4390-4392.  See,  in  this  connection,  the  interesting 
provisions  of  Art.  IX  of  agreement  (accord)  concluded  by  Bolivia,  Ecuador, 
Peru  and  Venezuela,  July  18,  1911,  in  relation  to  the  exercise  of  consular 
rights  in  the  territories  of  the  contracting  parties.  Brit,  and  For.  State  Pap., 
CVII,  Part  1,  p.  603. 

See  certain  Articles  of  the  Brazilian  decree  No.  855,  of  Nov.  8, 1851,  Brit,  and 
For.  State  Pap.,  XCII,  424 ;  also  exchange  of  notes  between  the  Governments 
of  Brazil  and  Germany,  1897-1898,  with  respect  to  the  application  of  the  pro- 
visions of  the  decree,  id.,  422-424. 

815 


§480]  PRIVILEGES   AND   IMMUNITIES 

a  citizen  or  subject  of  either  of  the  contracting  parties  within  the 
territories  of  the  other,  the  "effects"  should  be  delivered  up  to 
the  family  or  business  partners  of  the  decedent,  and  in  the  absence 
thereof,  "  to  the  consul  or  agent  of  the  nation  of  which  the  deceased 
was  a  subject  or  citizen,  so  that  he  may  dispose  of  them  in  accord- 
ance with  the  laws  of  his  country."  ^  In  the  Consular  Regula- 
tions of  the  United  States  of  1896,  it  was  stated  that  American 
consuls  in  Persia  "may  administer  upon  the  property  of  their 
deceased  countrymen."  ^ 

In  a  treaty  with  Salvador  of  December  6,  1870,  which  was 
abrogated  on  notice  given  by  that  country  May  30,  1893,  broadest 
privileges  were  conferred  upon  consular  officers  enabling  them  to 
perform  the  functions  common  to  an  administrator.^  Neither 
the  Persian  nor  Salvadorean  treaty  appeared  to  make  the  enjoy- 
ment of  the  right  conferred  upon  a  consul  dependent  upon  the 
sanction  of  the  local  law. 

According  to  Article  XIV  of  the  consular  convention  with 
Sweden  of  June  1,  1910,  the  consular  officer  or  his  representative 
"  shall,  so  far  as  the  laws  of  each  country  will  permit  and  pending 
the  appointment  of  an  administrator  and  until  letters  of  adminis- 
tration have  been  granted,  take  charge  of  the  property  left  by  the 
deceased  for  the  benefit  of  his  lawful  heirs  and  creditors,  and, 
moreover,  have  the  right  to  be  appointed  as  administrator  of  such 
estate."  '^  The  Supreme  Court  of  Minnesota  in  1912,^  and  the 
Court  of  Appeals  of  New  York  in  1914,^  were  of  opinion  that  the 
clause  —  "  so  far  as  the  laws  of  each  country  will  permit"  —  served 
to  qualify  the  entire  sentence  in  which  they  were  contained,  and 

1  Mallov's  Treaties,  II,  1373.  M  91,  Moore,  Dig.,  V,  1  ^X 

3  Par.  10,  Art.  XXXIII,  Malloy's  Treaties,  II,  1563. 

*  Charles'  Treaties,  117.  See  In  re  Holmberg's  Estate,  193  Fed.  260,  where 
it  was  held  that  this  Article  brought  a  consular  officer  of  Sweden  within  the 
tenor  of  Rev.  Stat.  §  4544,  providing  that  when  a  seaman  died  intestate,  and 
his  assets  did  not  exceed  $300,  they  should  be  paid  into  a  specified  court,  and 
by  it  delivered  to  any  persons  proving  themselves  entitled  to  take  out  letters 
of  administration,  even  though  no  letters  were  taken  out.  This  convention 
was  to  remain  in  force  ten  years  from  the  date  of  the  exchange  of  ratifications 
which  took  place  March  18,  1911,  and  thereafter  from  year  to  year,  unless 
within  a  specified  time,  either  party  should  give  notice  of  its  intention  not  to 
renew  it. 

*  Austro-Hungarian  Consul  v.  AYestphal,  120  Minn.  122. 

6  Matter  of  D'Adamo,  212  N.  Y.  214.  Such  was  also  the  view  of  the  Su- 
preme Court  of  California  in  1915,  in  In  reServas'  Estate,  146  Pac.  651. 

According  to  a  Circular  to  American  Consular  Officers  of  March  31,  1902, 
pursuant  to  an  Executive  Order  of  the  same  date,  acceptance  by  a  consular 
officer  of  appointment  from  a  foreign  State  in  any  fiduciary  capacity,  as  ad- 
ministrator, guardian,  etc.,  for  the  settlement  or  conservation  of  estates  of 
deceased  persons  or  of  their  heirs  or  other  persons  under  legal  disabilities  is 
forbidden,  unless  previously  authorized  by  the  Secretary  of  State. 

816 


ADMINISTRATION   OF  ESTATES  [§  480 

to  render,  therefore,  a  foreign  consul  merely  a  person  eligible  to 
act  as  administrator  when  no  one  having  a  prior  right  under  the 
local  law  was  competent  or  able  to  act. 

It  maj'  be  observed  that  the  courts  of  last  resort  in  Minnesota, 
New  York  and  Ohio  have  appeared  to  share  the  reluctance  of  the 
Supreme  Court  of  California  to  impute  to  the  Federal  Govern- 
ment the  intention  "by  means  of  its  treaty-making  power,  to 
materially  abridge  the  autonomy  of  the  several  States  and  to  in- 
terfere with  and  direct  the  State  tribunals  in  proceedings  affecting 
private  property  within  their  jurisdiction."  ^  Inasmuch  as  it 
has  been  conceded  by  these  tribunals  that  it  lies  within  the  so- 
called  treaty-making  power  of  the  Federal  Government  to  confer 
an  exclusive  right  to  administer  the  estate  of  a  deceased  intestate 
countryman  upon  a  foreign  consular  officer,  and  in  view  of  the 
fact  that  such  a  right  has  on  three  distinct  occasions  been  accorded 
Peruvian  consuls,  it  may  be  doubted  whether  the  true  significance 
of  the  terms  employed  is  to  be  derived  from  the  effect  produced 
upon  the  institutions  of  a  particular  State  of  the  United  States  by 
the  grant  of  the  right  asserted.^  In  view,  however,  of  the  mode 
and  nature  of  the  reference  to  the  local  laws,  the  decisions  respect- 
ing the  Swedish  and  Paraguayan  conventions  may  be  regarded 
as  the  natural  and  reasonable  consequence  of  the  phraseology  of 
the  texts.  Although  the  consular  right  thereby  conferred  must, 
in  the  light  of  judicial  opinion,  be  regarded  as  subordinate  to  that 
conferred  by  local  statutes  upon  specially  designated  individuals, 
it  is  suggested  that  a  consular  officer  who  is  entitled  to  invoke 
the  benefits  of  these  conventions  may  justly  claim  the  right  of 
appointment  whenever  the  appointing  judge  is  given  discretionary 
power,  or  whenever  no  opposing  applicant  relies  upon  a  superior 
statutory  right. ^ 

^Matter  of  the  Estate  of  Ghio,  157  Cal.  552,  557;  Austro-Hungarian 
Consul  V.  Westphal,  120  Minn.  122,  140 ;  Matter  of  DAdamo,  212  N.  Y.  214. 
227-228;  Pagano  v.  Cerri,  93  Ohio  S.  345,  112  N.  E.  1037.  See,  also,  In  re 
Servas'  Estate,  146  Pac.  651. 

2  The  problem  here,  as  in  every  case  involving  the  interpretation  of  a  treaty, 
is  to  ascertain  the  sense  in  which  particular  terms  were  employed  by  the  con- 
tracting parties.  Light  thereon  may  come  from  many  sources,  such  as  from 
declarations  of  the  negotiators,  or  from  local  con.'^titution.s.  It  is,  however,  an 
indirect  ray  that  passes  through  the  constitutionally  subordinated  agencies 
of  a  single  nation,  or  through  ex  parte  and  unrelated  views  of  national  policy 
emanating  from  its  foreign  office.  See,  also.  The  Interpretation  of  Treaties, 
So-called  Rules  of  Construction,  infra,  §  535. 

Respecting  divergent  views  of  policy  expressed  by  the  Department  of  State, 
see  Moore,  Dig.,  V,  118-124,  and  documents  there  cited  ;  also  Mr.  Root,  Secv. 
of  State,  to  Mr.  Brun,  Danish  Minister,  No.  678,  Mav  2,  1907,  For.  Rel.  1907, 
I,  304. 

^  Austro-Himgarian  Consul  i'.  Westphal,  120  Minn.  122 ;    In  re  Bagnola's 

817 


481]  PRIVILEGES   AND    IMMUNITIES 


§  481.   Representation    of    Non-Resident    Heirs    or    De- 
pendents. 

As  early  as  1821,  the  Supreme  Court  of  the  United  States  an- 
nounced that  a  foreign  consul  was  a  competent  party  to  assert 
or  defend  the  rights  of  property  of  his  countrymen  in  any  courts 
of  the  nation  having  jurisdiction  of  causes  affected  by  the  applica- 
tion of  international  law.^  It  is  believed  that  no  special  authoriza- 
tion, by  treaty  or  otherwise,  is  essential  in  order  to  warrant  the 
intervention  by  such  an  officer  in  cases  affecting  his  non-resident 
countrymen  whensoever  he  has  reason  to  believe  that  their  in- 
terests require  the  consular  protection.^ 

The  United  States  has  concluded  certain  conventions  which, 
in  varying  form,  recognize  a  consular  ofiicer  as  the  legal  represen- 
tative of  his  non-resident  countrymen,  and  which  serve  to  enable 
him  to  act  in  their  behalf  as  completely  as  if  he  held  their  mandate.^ 
According  to  Article  VIII  of  the  consular  convention  with  Germany 
of  December  11,  1871,  he  was,  for  certain  purposes,  presumed  to 
be  their  legal  representative.'*  By  virtue  of  Article  XV  of  the  con- 
Estate,  154  N.  W.  461,  where  the  Supreme  Court  of  Iowa  declared  in  1915: 
"It  is  thoroughly  well  settled  that  under  our  treaty  obligations  the  Consul 
[of  Italy]  has  the  initial  right  to  administer  upon  the  property  of  the  sub- 
jects of  his  country"  ;  In  re  Infelise's  Estate,  149  Pac.  365  (Montana). 

See,  also,  dissenting  opinion  of  Donahoe,  J.,  in  Pagano  v.  Cerri,  112  N.  E. 
1037,  1041,  in  relation  to  the  requirements  of  the  Ohio  statutory  law. 

1  The  Bello  Corrunes,  6  Wheat.  152,  Stowell's  Cases,  68.  It  was  also  there 
said,  pp.  168,  169,  that  "Whether  the  powers  of  the  vice-consul  shall  in  any 
instance  extend  to  the  right  to  receive,  in  his  national  character,  the  proceeds 
of  property  libeled  and  transferred  into  the  registry  of  a  court,  is  a  question 
resting  on  other  principles.  In  the  absence  of  specific  powers  given  him  by 
competent  authority,  such  a  right  would  certainly  not  be  recognized.  Much, 
in  this  respect,  must  ever  depend  upon  the  laws  of  the  country  from  which, 
and  to  which,  he  is  deputed."     See,  also,  The  Anne,  3  Wheat.  435,  445-446. 

'^  Thus  a  consul,  without  special  authorization,  might,  it  is  believed,  as  the 
legal  representative  of  his  non-resident  countrymen,  start  suit,  in  their  behalf, 
should  occasion  so  require. 

In  Nicola  Marsicana  v.  Felice  Ambrose  et  al..  Gen.  No.  313,768,  Superior 
Court  of  Cook  County,  Illinois,  Judge  Sullivan  held,  on  June  1,  1915,  on 
petition  of  the  Royal  Italian  Vice-Consul,  that  under  existing  treaty  provisions 
with  Italy,  that  officer  had  the  right  to  enter  his  appearance  as  legal  representa- 
tive of  Felice  Ambrose,  an  Italian  subject  residing  in  Italy  (who  had  been  made 
a  party  defendant  to  a  bill  in  chancery  and  had  been  defaulted),  and  in  his 
own  name  as  consular  representative  take  whatever  steps  might  be  deemed 
necessary  to  protect  the  latter's  interests. 

'  "In  our  view,  the  stipidation  in  this  treaty  puts  the  delegate  in  the  position 
of  an  agent  of  the  French  heirs,  with  the  same  effect  as  if  he  held  their  mandate 
to  represent  them  as  heirs.  That  was  the  manifest  purpose,  and  the  language 
of  the  treaty  plainly  ex-presses  that  intention.  There  is  no  power  to  appoint 
an  attorney  for  absent  heirs  when  the  heirs  are  present  or  represented." 
Miller,  J.,  in  Succession  of  Rabasse,  17  So.  867,  47  La.  Aim.  1454. 

*  Malloy's  Treaties,  I,  552. 

818 


REPRESENTATION  OF  NON-RESIDENT  HEIRS    [§  481 

sular  convention  with  Belgium  of  March  9,  1880,  he  was  accorded 
the  right  to  appear  personally  or  by  delegate  on  behalf  of  the  absent 
or  minor  heirs  or  creditors,  until  they  were  duly  represented,^ 
while  Article  VI  of  the  treaty  of  friendship  with  Persia  of  December 
13,  1856,  expressly  declared  that  the  effects  of  the  deceased  ("in 
case  he  has  no  relations  or  partners")  should  "be  delivered  up" 
to  the  consul  or  agent  of  the  nation  of  which  the  deceased  was  a 
subject  or  citizen.^  Provisions  of  certain  treaties  of  commerce, 
such  as  were  contained  in  Article  XXII  of  that  with  Italy  of 
February  26,  1871,  permitted  citizens  of  each  contracting  party 
to  succeed  to  personal  property  by  will  or  otherwise  within  the 
territory  of  the  other,  and  to  take  possession  thereof,  "either  by 
themselves,  or  others  acting  for  them."  ^  Thus  an  Italian  con- 
sular officer,  by  virtue  of  the  most-favored-nation  clause  contained 
in  Article  XVII  of  the  consular  convention  with  Italy  of  INIay  8, 
1878,'*  is  made  the  legal  representative  of  his  non-resident  country- 
men, who,  through  his  agency,  are  permitted  to  take  possession  of 
their  personal  property  within  the  United  States.  Consequently 
he  is  entitled  to  claim  their  distributive  shares  derived  either  from 
estates  in  process  of  probate  in  American  courts  or  from  other 
sources,  and  by  his  receipt  therefor,  he  is  capable  of  completely 
discharging  all  claims  of  his  principals.  The  exercise  of  this  right 
has  received  repeated  recognition  from  local  governmental  agencies 
having  occasion  to  make  distribution  of  funds  to  non-resident 
alien  heirs.^  It  has  also  been  shown  marked  respect  in  the  work- 
men's compensation  laws  of  certain  American  States,  such  as  those 
of  Nebraska  and  INIinnesota,  according  to  which  the  consular 
representative  is  declared  to  possess  in  behalf  of  his  non-resident 
dependent  countrymen  an  exclusive  right  to  settle  all  claims  for 
compensation,  and  to  receive  for  distribution  all  eompensation 
arising  thereunder.^ 

1  Malloy's  Treaties,  I,  99.  2  Id.,  II,  1373. 

3  Id.,  I,  976.  4  Id.,  I,  982. 

6  See,  for  example,  In  re  Tartaglio,  33  N.  Y.  Supp.  1121,  1123,  Stowell's 
Cases,  360,  361 ;  In  re  Rosario  Carioto,  Probate  Court  of  Cook  County,  Illi- 
nois, Chicago  Legal  News,  October  1,  1910,  Vol.  42,  page  57;  In  re  Paola  La 
Torre,  Probate  Court  of  Wayne  County,  Michigan,  May  31,  1911,  Ludwig's 
Consular  Treaty  Rights,  62 ;  In  re  Giuseppe  Cernyar's  Estate,  Orphans' 
Court  of  Westmoreland  County,  Pa.,  No.  58,  May  Term,  1911,  Ludwig's 
Consular  Treaty  Rights,  63  ;  In  re  Estate  of  Charles  Casper,  District  Court  of 
St.  Louis  County,  Minn.,  July  17,  1906,  Ludwig's  Consular  Treaty  Rights, 
72  ;  Vujic  v.  Youngstown  Sheet  and  Tool  Co.,  220  Fed.  390.  See,  also,  judg- 
ment of  the  Italian  Court  of  Cassation,  Feb.  4,  1907,  contained  in  communica- 
tion of  Mr.  Griscom,  American  Ambassador  to  Italy,  to  Mr.  Root,  Secy,  of 
State,  April  29,  1907,  For.  Rel.  1907,  II,  750. 

*  According  to  §  113  (5)  of  the  Employer's  Liability  Act  of  Nebraska  of 

819 


§  482]  PRIVILEGES   AND   IMMUNITIES 


§  482.   The  Most-Favored-Nation  Clause. 

The  consular  conventions  to  wliich  the  United  States  is  a  party 
commonly  provide  that  the  consular  oflficers  of  the  contracting 
parties  shall  enjoy  reciprocally,  all  of  the  privileges,  exemptions 
and  immunities  that  are  enjoyed  by  officers  of  the  same  rank  and 
quality  of  the  most-favored  nation.^  It  is  noted  elsewhere  that, 
according  to  the  weight  of  American  judicial  opinion,  in  which 
that  of  the  Department  of  State  appears  now  to  coincide,  consular 
officers  of  the  State  whose  convention  makes  such  provision,  are 
entitled  generally  to  the  benefits  of  rights  accorded  by  treaty  to 
similar  officers  of  a  third  State.^ 

9 
SHIPPING   AND   SEAMEN 


§  483.    Jurisdiction  in  Controversies  Respecting  Seamen. 

That  a  seaman  when  in  foreign  ports  and  places  should  be 
subjected  for  certain  purposes  to  the  control  of  the  consular 
representative  of  the  State  to  which  the  ship  belongs  is  a 
matter  of  common  necessity  to  maritime  nations.     In  response 

1913,  "The  consul-general,  consul,  vice-consul-general  or  vice-consul  of  the 
nation  of  which  the  employe,  whose  injury  results  in  death,  is  a  citizen,  or  the 
representative  of  such  consul-general,  consul,  vice-consul-general  or  vice- 
consul  residing  within  the  State  of  Nebraska,  shall  be  regarded  as  the  sole 
legal  representative  of  any  aUen  dependents  of  the  employe,  residing  outside 
of  the  United  States,  and  representing  the  nationalitj'  of  the  employe.  Such 
consular  officer,  or  his  representative,  residing  in  the  State  of  Nebraska,  shall 
have,  in  behalf  of  such  non-resident  dependents,  the  exclusive  right  to  adjust 
and  settle  all  claims  for  compensation  provided  by  this  Article  and  to  receive 
for  distribution  to  such  non-resident  alien  dependents  all  compensation  aris- 
ing thereunder."     Chap.  35,  Art.  VIII,  §  3663.  Rev.  Stat,  of  Nebraska,  1913. 

According  to  §  23  of  the  Workmen's  Compensation  Law  of  Minnesota, 
Chap.  467,  General  L.,  1913,  as  amended  in  1915:  "In  case  [of]  a  deceased 
employe,  for  whose  injury  or  death  compensation  is  payable,  leaves  surviving 
him  an  alien  dependent  or  dependents  residing  outside  of  the  United  States, 
the  said  judge  shall  direct  payment  of  all  compensation  due  to  the  deceased 
or  to  his  dependents  to  be  made  to  the  duly  accredited  consular  officer  of  the 
country  of  which  the  beneficiaries  are  citizens,  if  such  consular  officer  reside 
within  the  State  of  Minnesota,  or  if  not,  to  his  designated  representative  re- 
siding within  the  State,  and  such  consular  officer  or  his  representative  shall  be 
the  sole  representative  of  such  deceased  employe  and  of  such  dependents  to 
settle  all  claims  for  compensation  and  to  receive  for  distribution  to  the  persons 
entitled  thereto,  all  compensation  arising  hereunder.'' 

1  See,  for  example.  Art.  II,  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  112. 

-  Interpretation  of  Treaties,  Most-favored-nation  Clause,  Consular  and 
Other  Privileges,  injra,  §  537. 

820 


CONTROVERSIES  OF  SEAMEN  [§  483 

thereto  modern  consular  conventions  have  made  elaborate  pro- 
vision. Those  of  the  United  States  have  been  designed  to  cope 
with  three  distinct  problems :  first,  with  the  jurisdiction  over 
seamen ;  secondly,  the  reclamation  of  deserting  seamen ;  and 
thirdly,  the  adjustment  of  damages  suffered  at  sea  and  arising  in 
matters  of  wreck  and  salvage.^ 

It  has  been  observed  that  according  to  certain  conventions  of 
the  United  States,  consular  officers  are  given  jurisdiction  over  the 
internal  order  of  merchant  vessels  of  their  nation,  and  the  exclusive 
right  to  take  cognizance  of  any  differences  w^hich  may  arise,  either 
at  sea  or  in  port,  between  the  captains,  officers  and  crews,  wathout 
exception,  particularly  in  reference  to  the  adjustment  of  wages 
and  the  execution  of  contracts.  Interference  on  the  part  of  local 
authorities  is,  moreover,  forbidden,  except  when  disorder  has  arisen 
of  a  nature  such  as  to  disturb  tranquillity  and  public  order  on 
shore,  or  when  a  person  of  the  country,  not  belonging  to  the  crew 
is  concerned  therein."  Otherwise  the  function  of  such  authorities 
is  confined  to  lending  aid,  when  requested  by  the  consular  officers, 
in  arresting  and  imprisoning,  for  any  cause,  any  person  whose  name 
is  inscribed  on  the  crew  list.^ 

By  certain  treaties  the  persons  arrested  at  the  request  of  con- 
sular officers  by  the  local  authorities  are  to  be  held  in  custody 
"during  the  whole  time  of  their  stay  in  the  port"  at  the  disposal 
of  the  latter ."*    The  statutory  laws  of  the  United  States  enacted 

1  Consular  Regulations  of  the  United  States  (1896),  §§  88,  89  and  90,  Moore, 
Dig.,  V,  128. 

The  statutory  law  of  the  United  States  making  provision  for  the  exercise 
by  American  consular  officers  of  acknowledged  rights  in  respect  to  American 
shipping  and  American  seamen  have  given  rise  to  problems  of  a  domestic 
rather  than  an  international  character. 

2  Rights  of  Jurisdiction,  Foreign  Merchant  Vessels,  Matters  of  Internal 
Order  and  Discipline,  supra,  §  222. 

3  The  statement  in  the  text  is  taken  from  Art.  XI,  consular  convention  with 
Belgium,  March  9,  1880.  Malloy's  Treaties,  I,  97,  which  is  followed  in  Art.  XI, 
consular  convention  with  Roumania,  June  17,  1881,  id.,  II,  1515,  and  in 
Art.  XI,  consular  convention  with  Sweden,  June  1,  1910,  Charles'  Treaties, 
115.     Concerning  the  Swedish  convention  see  The  Ester,  190  Fed.  216. 

See,  also,  the  slightly  differing  provisions  of  Art.  XI,  consular  convention 
with  Austria-Hungary,  July  11,  1870,  Malloy's  Treaties,  I,  42;  Art.  XIII, 
consular  convention  with  Germanv,  id.,  I,  554 ;  Art.  XI,  consular  convention 
with  the  Netherlands,  May  23,  "1878,  id.,  II,  1258;  Art.  I,  supplemental 
consular  convention  with  Italy,  Feb.  24,  1881,  id.,  I,  983  ;  Art.  XXIII,  treaty 
of  friendship  with  Spain,  July  3,  1902,  id.,  II,  1708.  Respecting  the  conven- 
tion with  the  Netherlands,  see  The  Albergen,  223  Fed.  443. 

See  analvsis  of  earlier  treaties  of  the  United  States  by  Chief  Justice  Waite, 
in  Wildenhus's  Case,  120  U.  S.  1,  13-17. 

See  case  of  intervention  by  the  American  Consul-General  at  Rio  de  Janeiro 
in  1908,  notwithstanding  the  absence  of  any  appropriate  treaty,  For.  Rel. 
1909,41-42. 

*  "This  provision  is  found,  for  example,  in  Art.  VIII,  consular  convention 

821 


§483]  PRIVILEGES  AND   IMMUNITIES 

for  the  purpose  of  executing  its  treaties,^  permit  an  arrested  sea- 
man to  be  held  in  custody  for  a  period  not  to  exceed  two  months, 
and  that  (according  to  the  opinion  of  the  Supreme  Court  of  the 
United  States),  irrespective  of  the  departure  of  the  ship  prior  to 
the  expiration  of  such  time.^ 

In  the  absence  of  treaty  the  exercise  of  jurisdiction  by  an 
American  court  of  admiralty  in  a  contest  between  a  foreign 
seaman  and  the  master  of  a  foreign  ship  and  relating  to  a  mari- 
time contract  is  deemed  to  be  within  the  discretion  of  the 
tribunal.  The  Supreme  Court  of  the  United  States  has,  how- 
ever, declared  that  admiralty  courts  will  not  interfere  between 
the  parties  in  such  cases  "  unless  there  is  special  reason  for  doing 
so,  and  will  require  the  foreign  consul  to  be  notified,  and,  though 
not  absolutely  bound  by,  will  always  pay  due  respect  to,  his 
wishes  as  to  taking  jurisdiction."  ^ 


§  484.   Reclamation  of  Deserting  Seamen. 

It  has  been  laid  down  as  a  general  proposition  that  the  surrender 
of  deserting  seamen  cannot,  in  the  absence  of  treaty,  be  granted 
by  the  authorities  of  the  United  States."*    The  statutory  law  which 

with  France,  Feb.  23,  1853,  Malloy's  Treaties,  I,  531 ;  Art.  I,  supplemental 
convention  with  Italy,  Feb.  24,  1881,  id.,  I,  983  ;  and  in  Art.  XXix^.  tr  utv  of 
friendship  with  Spain,  July  3,  1902,  id.,  II,  1708. 

1  Rev.  Stat.  §§  4079,  4080  and  4081. 

But  see  the  repeal  in  part  of  §  4081,  by  the  Act  of  March  4,  1915,  Chap.  153, 
§  17,  38  Stat.  1184,  U.  S.  Comp.  Stat.  1918,  §  8382b,  in  so  far  as  the  earlier 
statute  related  to  the  arrest  and  imprisonment  of  officers  and  seamen  charged 
with  desertion  from  merchant  vessels  of  foreign  nations  in  the  United  States 
and  Territories  and  possessions  thereof. 

2  Dallemagne  v.  Moisan,  197  U.  S.  169,  Moore,  Dig.,  V,  129.  In  the  same 
case  it  was  held  that  while  the  statute  required  application  for  the  arrest  of  a 
seaman  to  be  made  "to  any  court  of  record  of  the  United  States,  or  any  Judge 
thereof,  or  to  any  commissioner  appointed  under  the  laws  of  the  United  States", 
and  the  issuance  of  the  warrant  of  arrest  to  a  United  States  Marshal,  and  hence 
rendered  irregular  an  application  to  and  an  arrest  by  a  local  chief  of  police, 
the  bringing  of  a  seaman  so  arrested  before  a  United  States  court  on  habeas 
corpus  rendered  it  the  duty  of  such  tribunal  to  examine  the  case  and  commit 
the  seaman  to  prison,  if  he  came  within  the  terms  of  the  treaty,  and  served  to 
render  unimportant  the  irregularitv  of  the  arrest. 

3  The  Belgenland,  114  U.  S.  355," 364.  See,  also.  The  Lady  Furness,  84  Fed. 
679 ;  The  Troop,  128  Fed.  856,  where  an  American  court  of  admiralty  enter- 
tained jurisdiction  after  the  appropriate  British  consul  disclaimed  authority 
to  adjudicate  the  question  as  respecting  the  duty  of  the  master  of  a  Briti.sh 
ship  to  furnish  a  German  seaman  with  proper  care,  treatment  and  supplies 
after  his  accidental  injury  in  the  service  of  the  ship.  Respecting  the  Act  of 
December  21,  1898,  30  Stat.  763,  relating  to  the  protection  of  American  sea- 
men, and  the  application  thereof  to  the  shipment  of  seamen  on  foreign  vessels 
in  American  ports,  see  Patterson  v.  Bark  Eudora,  190  U.  S.  169. 

*  See  opinion  of  the  court  in  Tucker  v.  Alexandroff,  183  U.  S.  424,  431, 
riling  Moore,  Extradition,  §  408 ;  also  dissenting  opinions  of  Justices  Gray, 

822 


RECLAMATION   OF  DESERTING   SEAMEN         [§  484 

formerly  made  provision  for  the  recovery  of  deserters  from  foreign 
vessels,  was  limited  in  its  scope  to  cases  where  applications 
for  arrest  emanated  from  consular  officers  of  foreign  States  with 
which  appropriate  conventions  had  been  concluded.^  The  conduct 
of  an  American  consul  in  causing,  in  1899,  the  arrest  and  imprison- 
ment in  the  Argentine  Republic  of  a  deserter  from  an  American 
vessel  of  war,  was  not  approved  by  the  Department  of  State,  be- 
cause of  the  absence  of  a  treaty  with  that  country  providing  for 
the  arrest  in  the  United  States  of  deserters  from  Argentine  vessels, 
and  of  the  resulting  inability  of  the  Government  to  give  assurance 
of  reciprocity.- 

Numerous  conventions  of  the  United  States  have,  in  the  past, 
provided  for  the  reclamation  of  deserting  seamen  through  the 
consular  service.  According  to  the  arrangement  with  Sweden 
of  1910,  the  consular  officer  was  permitted  to  cause  the  arrest 
of  officers,  sailors  and  "all  other  persons  making  part  of  the 
crews  in  any  matter  whatever,  of  ships  of  war  or  merchant  vessels 
of  their  nation,  who  may  be  guilty,  or  be  accused,  of  having  de- 
serted said  ships  and  vessels,  for  the  purpose  of  sending  them  on 
board  or  back  to  their  country."  ^ 

In  1915,  the  United  States,  through  the  enactment  of  the  Sea- 
men's Act,  departed  from  its  previous  policy  established  by  con- 
sular conventions  in  harmony  with  the  statutory  law.  That  Act 
announced  that  in  the  judgment  of  Congress,  Articles  in  treaties 
and  conventions  of  the  United  States,  in  so  far  as  they  provided 
for  the  arrest  and  imprisonment  of  officers  and  seamen  deserting 

Harlan,  White,  and  Chief  Justice  Fuller,  id.,  467;  Opinions  of  Mr.  Cushing, 
Atty.-Gen.,  6  Ops.  Attys.-Gen.,  148  and  6  Ops.  Attys.-Gen.,  209;  also  Moore 
Dig.,  IV,  417  and  documents  there  cited;  Mr.  Hunter,  Acting  Secy,  of  State, 
to  Mr.  Osborn,  Minister  to  the  Argentine  RepubUc,  No.  190,  Nov.  6,  1883, 
MS.  Inst.  Argentine  Republic,  XVI,  292,  Moore,  Dig.,  IV,  420. 

^  See  statement  in  Moore,  Dig.,  IV,  418;  also  Mr.  Adee,  Acting  Secy,  of 
State,  to  Duke  de  Arcos,  Oct.  9,  1901,  informing  the  latter  of  the  absence  of 
any  law  or  regulation  of  the  United  States,  providing  for  the  punishment 
of  deserters  from  the  vessel  of  a  foreign  country  with  which  the  United  States 
had  no  treaty.  For.  Rel.  1901,  484. 

See  Rev.  Stat.  §  5280.  Respecting  the  operation  of  the  statute  in  relation  to 
the  treaties,  see  Opinion  of  Mr.  Gushing,  Attv.-Gen.,  6  Ops.  Attvs.-Gen.  148; 
Opinions  of  Mr.  Black,  Atty.-Gen.,  9  Ops.  Attys.-Gen.  96  and  246;  Tucker  v. 
Alexandroff,  183  U.  S.  424,  Moore,  Dig.,  IV,  422-424;  United  States  v.  Minges, 
16  Fed.  657;  United  States  v.  Kelly,  108  Fed.  538.  See,  also,  enactment  of 
the  Philippine  Commission,  Jan.  16,  1906,  providing  for  the  arrest,  examina- 
tion and  return  of  seamen  deserting  from  foreign  vessels,  For.  Rel.  1906,  II, 
941-942. 

2  Mr.  Hay,  Secy,  of  State,  to  Mr.  Buchanan,  Minister  to  Argentine  Republic, 
No.  476,  April  4,  1899,  MS.  Inst.  Argentine  Republic,  XVII,  453,  Moore,  Dig., 
IV,  422. 

^  Article  XII,  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  116.     This  Article  was  terminated  by  agreement  in  1920. 

823 


§484]  PRIVILEGES   AND   IMMUNITIES 

or  charged  with  desertion  from  merchant  vessels  of  the  United 
States  in  foreign  countries,  and  for  the  arrest  and  imprisonment 
of  officers  and  seamen  deserting  or  charged  with  desertion  from 
merchant  vessels  of  foreign  nations  in  the  United  States  and  the 
Territories  and  possessions  thereof,  and  for  the  cooperation,  aid, 
and  protection  of  competent  legal  authorities  in  effecting  such  arrest 
or  imprisonment,  and  any  other  treaty  provision  in  conflict  with 
the  provisions  of  the  Act,  ought  to  be  terminated.  To  that  end 
the  President  was  requested  and  directed,  within  ninety  days  after 
the  passage  of  the  Act,  to  give  notice  to  the  several  governments, 
respectively,  that  so  much  "as  hereinbefore  described"  of  all  of 
such  treaties  and  conventions  between  the  United  States  and 
foreign  governments  would  terminate  on  the  expiration  of  such 
periods  after  notices  had  been  given  as  might  be  required  in  such 
agreements.^ 

Notice  of  abrogation  of  articles  of  treaties  in  conflict  with  the 
Act  was  accepted  by  certain  foreign  States  with  the  understand- 
ing that  the  other  provisions  of  the  conventions  should  remain 
in  force  .^ 

c 

§  485.   Matters  of  Wreck  and  Salvage. 

It  is  found  desirable  that  a  foreign  consul  should  be  permitted 
to  direct  proceedings  relative  to  the  salvage  of  vessels  under  the 
flag  of  his  country  and  which  are  wrecked  upon  the  coasts  of  the 
State  to  which  he  is  accredited.  The  United  States  has  concluded 
numerous  conventions  making  provisions  appropriate  to  that  end. 

1  Act  of  March  4,  1915,  Chap.  153,  §  16,  38  Stat.  1184,  U.  S.  Comp.  Stat. 
1918,  §  8382a. 

According  to  §  17  of  this  Act:  "Upon  the  expiration  after  notice  of  the 
periods  required,  respectively,  by  said  treaties  and  conventions  and  of  one 
year  in  the  case  of  the  independent  State  of  the  Kongo,  so  much  as  hereinbe- 
fore described  in  each  and  every  one  of  said  articles  shall  be  deemed  and  held 
to  have  expired  and  to  be  of  no  force  and  effect,  and  thereupon  section  fifty- 
two  hundred  and  eighty  and  so  much  of  section  four  thousand  and  eighty-one 
of  the  Revised  Statutes  as  relates  to  the  arrest  or  imprisonment  of  officers 
and  seamen  deserting  or  charged  with  desertion  from  merchant  vessels  of 
foreign  nations  in  the  United  States  and  Territories  and  possessions  thereof, 
and  for  the  cooperation,  aid,  and  protection  of  competent  legal  authorities 
in  effecting  such  arrest  or  imprisonment,  shall  be,  and  is  hereby,  repealed." 

According  to  §  18  :  "This  Act  shall  take  effect  as  to  all  vessels  of  the  United 
States,  eight  months  after  its  passage,  and  as  to  foreign  vessels  twelve  months 
after  its  passage,  except  that  such  parts  hereof  as  are  in  confhct  with  articles 
of  any  treaty  or  convention  with  any  foreign  nation  shall  take  effect  as  re- 
gards the  vessels  of  such  foreign  nation  on  the  expiration  of  the  period  fixed 
in  the  notice  of  abrogation  of  the  said  articles  as  provided  in  section  sixteen 
of  this  Act." 

2  Mr.  Phillips,  Acting  Secy,  of  State,  to  the  Senate,  March  27,  1919,  with 
enclosures,  Senate  Doc.  No.  2,  66  Cong.,  1  Sess. 

824 


ADMINISTRATION  OF  OATHS  [§  486 

According  to  a  recent  agreement,  all  proceedings  relative  to 
the  salvage  of  vessels  of  either  contracting  party  wrecked  upon 
the  coasts  of  the  other  are  to  be  directed  by  the  respective  con- 
sular oflEicers  of  designated  rank.^  In  locations  where  no  consular 
agency  exists,  and  pending  the  arrival  of  the  appropriate  consular 
officer  who  shall  have  been  immediately  informed  of  the  occurrence, 
the  local  authorities  are  charged  with  the  duty  of  taking  all 
necessary  measures  for  the  protection  of  persons  and  the  preserva- 
tion of  \\Tecked  property.  Such  authorities  are  not  to  interfere 
otherwise  than  for  the  maintenance  of  order,  the  protection  of  in- 
terests of  salvors  (if  these  do  not  belong  to  the  crews  that  have 
been  wTecked),  and  for  the  purpose  of  carrying  into  effect  the 
arrangements  for  the  entry  and  exportation  of  the  merchandise 
salved,  which,  unless  intended  for  consumption  in  the  country 
where  the  wreck  occurred,  is  not  to  be  subjected  to  custom-house 
charges.^ 

10 
NOTARIAL  FUNCTIONS 


§  486.   Administration  of  Oaths. 

It  is  of  highest  importance  that  a  consular  officer  should  be 
permitted  to  perform  certain  notarial  acts  within  his  consular 
district.^  Numerous  conventions  to  which  the  United  States 
is  a  party  confer  that  privilege.  According  to  an  agreement  of 
1910,  consular  officers  may,  "  as  far  as  may  be  compatible  with  the 
laws  of  their  own  country,  take  at  their  offices,  their  private  resi- 
dences, at  the  residence  of  the  parties  concerned,  or  on  board  ship, 
the  depositions  of  the  captains  and  crews  of  the  vessels  of  their 
own  country  and  of  passengers  thereon,  as  well  as  the  depositions 
of  any  citizen  or  subject  of  their  own  country."  ^ 

1  Art.  XIII,  consular  convention  with  Sweden,  June  1,  1910,  Charles' 
Treaties,  116. 

2  Id.,  where  it  is  also  provided  that  "The  intervention  of  the  local  author- 
ities in  these  different  cases  shall  occasion  no  expense  of  any  kind,  except  such 
as  may  be  caused  by  the  operations  of  salvage  and  the  preservation  of  the 
goods  saved,  together  with  such  as  would  be  incurred  under  similar  circum- 
stances by  vessels  of  the  nation." 

That  the  Federal  courts  of  the  United  States  have  jurisdiction  in  cases 
of  claims  for  salvage  even  where  all  parties  are  aliens,  see  Mason  v.  Blaireau, 
2  Cranch,  240,  264,  Moore,  Dig.,  II,  78. 

3  Oppenheim,  2  ed.,  I,  §  433. 

■*  Art.  X,  consular  convention  with  Sweden,  June  1,  1910,  Charles'  Treaties, 
115.  See,  also,  Art.  XXII,  treaty  of  friendship  with  Spain,  July  3,  1902, 
Malloy's  Treaties,  II,  1707. 

825 


§486]  PRIVILEGES   AND   IMMUNITIES 

Every  American  consular  officer  is  required  by  the  statutory  law 
of  the  United  States,  when  application  is  made  to  him  therefor, 
within  the  limits  of  his  consulate,  to  administer  to  or  take  from 
any  person  any  oath,  affirmation,  affidavit  or  deposition,  and  to 
perform  any  other  notarial  act  which  any  notary  public  is  required 
or  authorized  bv  law  to  do  within  the  United  States.^ 


§  487.   Authentication  of  Documents. 

Certain  conventions  of  the  United  States  permit  consular  officers 
of  the  contracting  parties  to  "draw  up,  attest,  certify  and  authen- 
ticate" all  unilateral  acts,  deeds  and  testamentary  dispositions 
of  their  countrymen,  as  well  as  all  contracts  to  which  one  or  more 
of  their  countrymen  are  parties ;  all  deeds  or  ^VTitten  instruments 
which  have  for  their  object  the  conveyance  or  encumbrance  of 
real  or  personal  property  within  the  territory  of  the  country  ap- 
pointing the  consul ;  also  all  unilateral  acts,  deeds,  testamentary 
dispositions,  as  well  as  contracts  relating  to  property  situated  or 
business  to  be  transacted  within  such  country,  even  in  case  such 
acts,  deeds,  testamentary  dispositions,  or  contracts  are  executed 
solely  by  citizens  of  the  State  ^vdthin  which  the  officers  exercise 
their  functions.^     Agreement  is  also  made  that  all  such  instruments 

1  Act  of  AprU  5,  1906,  Chap.  1366,  §  7,  34  Stat.  101,  U.  S.  Comp.  Stat.  1918, 
§  3185 ;  also  §  1750  Rev.  Stat.  See  F.  Van  Dyne,  Our  Foreign  Service,  154- 
155 

Compare  the  situation  prior  to  the  enactment  of  the  Act  of  1906,  indicated 
in  communication  of  Mr.  Adee,  Second  Assistant  Secy,  of  State,  to  Mr.  John- 
son, April  20,  1887,  121  MS.  Inst.  Consuls,  102,  Moore,  Dig.,  V,  110. 

According  to  Circular  Instructions  of  May  29,  1903,  American  consular 
officers  are  forbidden  to  perform  notarial  services  outside  of  the  limits  of  their 
consular  districts.  See,  also,  correspondence  with  Great  Britain  in  1910, 
respecting  the  taking  of  testimony  by  consular  officers.     For.  Rel.  1910,  592. 

2  Art.  XXII  of  treaty  with  Spain,  of  July  3,  1902,  Malloy's  Treaties,  II, 
1707;  also  Art.  X,  consular  convention  with  Sweden,  Jime  1,  1910,  Charles' 
Treaties,  115. 

According  to  Circular  Instructions  of  Dec.  17,  1906,  the  drawing  of  wills, 
powers  of  attorney  and  performance  of  other  legal  services  were  declared 
not  to  come  properly  within  the  scope  of  the  functions  of  consular  officers, 
who  were  instructed  to  decline  to  perform  legal  services,  except  in  cases  where 
a  different  course  was  rendered  absolutely  necessary  by  reason  of  the  absence 
of  any  available  law^^er,  or  where  delay  would  work  hardship  upon  an  Ameri- 
can citizen.  In  such  cases  it  was  stated  that  interested  persons  should  be  in- 
formed that  the  services  were  performed  at  their  risk  and  that  the  Govern- 
ment of  the  United  States  assumed  no  responsibility  therefor.  Apart  from 
the  usual  fees  for  copying  and  translation,  consular  officers  were  forbidden 
to  make  any  charge  for  such  services. 

Wills.  In  response  to  an  inquiry  from  the  Italian  Charge  at  Washing- 
ton, June  18,  1910,  concerning  the  functions  assigned  to  American  consuls, 
Mr.  Wilson,  Acting  Secretary  of  State,  on  July  2,  1910,  declared  that  "it  is 

826 


AUTHENTICATION    OF   DOCUMENTS  [§  487 

and  documents  thus  executed,  and  all  copies  when  duly  authenti- 
cated by  the  consular  officers,  are  to  be  received  as  evidence  in  the 
specified  territories  of  the  contracting  parties  as  original  documents 
or  authenticated  copies,  as  the  case  may  be,  and  shall  have  the  same 
force  and  effect  as  if  drawn  up  and  executed  before  a  notary  or 
public  officer  duly  authorized  in  the  State  by  which  the  consuls  are 
appointed,  provided  they  have  been  drawn  and  executed  in  con- 
formity with  the  laws  and  regulations  of  the  country  wherein  they 
are  intended  to  take  effect.^ 

The  treaties  of  the  United  States  are  silent  respecting  any 
right  or  duty  on  the  part  of  a  consular  officer  to  authenticate  the 
signatures  of  officials  of  the  State  to  which  he  is  accredited.  Secre- 
tary Marcy,  in  1853,  was  of  opmion  that  the  duty  of  authentication 
was  not  discretionary,  but  one  impliedly  assumed  by  a  consular 
officer  upon  receipt  of  his  exequatur  or  commission.  Hence  the 
refusal  of  a  Spanish  consul  to  authenticate  the  signature  of  the 
Secretary  of  State  was  deemed  to  be  arbitrary  and  unreasonable.^ 
Discrimination  by  foreign  consular  officers  in  the  United  States 
against  American  citizens  of  certain  races,  by  the  refusal  to  au- 
thenticate for  their  use  the  signatures  of  public  officials,  has  been 
the  subject  of  frequent  if  unsuccessful  remonstrance.^ 

It  may  be  observed  that  consuls  do  not  appear  to  be  entrusted 
with  the  power  of  authenticating  the  laws  of  foreign  States.  Ac- 
cording to  the  view  expressed  by  Chief  Justice  ]\Iarshall  as  early 
as  180-1,  consular  officers  cannot  issue  official  copies  of  foreign 
laws;  and  no  reason  appears  "for  assigning  to  their  certfficate 
respecting  a  foreign  law  any  higher  or  different  degree  of  credit 

no  part  of  a  consul's  duty  to  take  any  action  either  in  drawing  wills  or  ac- 
cepting them  for  deposit,  although  in  some  instances  they  are  permitted  by 
treaty  to  draw  up  testamentary  dispositions.  Their  general  instructions 
require  them  to  decline  to  perform  these  as  well  as  all  other  legal  services  ex- 
cept in  cases  where  no  lawyer  is  available  and  where  delay  would  work  hard- 
ship upon  any  American  citizen."     For.  Rel.  1910,  676. 

1  Art.  XXII  of  treaty  with  Spain,  of  July  3,  1902,  Malloy's  Treaties,  II, 
1707;  Art.  X  of  consular  convention  with  Sweden,  of  June  1,  1910,  Charles' 
Treaties,  115. 

2  See  communication  to  Mr.  Magallon,  Spanish  Minister,  Jan.  19,  1854, 
MS.  Notes  to  Spanish  Legation,  VII,  10,  Moore,  Dig.,  V,  115. 

3  Moore,  Dig.,  V,  116,  and  documents  there  cited,  respecting  the  refusal 
of  Russian  consiilar  officers  to  exercise  certain  notarial  functions  for  the  use 
of  certain  classes  of  American  citizens. 

See,  Mr.  Adee,  Acting  Secv.  of  State,  to  Mr.  Moeser,  July  13,  1894,  197 
MS.  Dom.  Let.  671,  Moore,  Dig.,  V,  116,  respecting  the  refusal  of  an  Austro- 
Hungarian  consul  to  certify  to  the  official  character  of  a  notary  pubhc.  In 
the  course  of  this  communication  it  was  declared  that  "it  has  been  held  that 
an  American  consul  cannot  be  required  to  certify  to  the  official  character  or 
acts  of  a  foreign  notary  public.  12  Ops.  Attys.-Gen.  1."  See,  also,  Catlett 
V.  Pacific  Insurance  Company,  1  Paine,  594,  Stowell's  Cases,  98. 

827 


§487]  PRIVILEGES  AND   IMMUNITIES 

than    would    be    assigned    to    their    certificates    of  any   other 
fact."  1 

11 

§  488.    Miscellaneous  Duties. 

There  are  numerous  duties,  the  performance  of  which  by  its 
consular  officers  is  required  by  the  appointing  State,  and  which 
are  rarely  opposed  by  that  other  within  whose  domain  they  are 
undertaken.  Concerning  many  the  treaties  are  silent  and  diplo- 
matic controversy  infrequent.  As  questions  relating  to  per- 
formance are  chiefly  confined  to  issues  between  consular  officers 
and  their  own  governments,  they  possess  but  slight  international 
significance. 

The  United  States,  for  example,  finds  its  consular  corps  a  valu- 
able ally  in  protecting  its  own  institutions,  such  as  its  customs 
revenue,  its  public  health  and  its  merchant  marine.  Thus,  there 
is  imposed  upon  American  consular  officers  the  duty  to  certify  as 
to  the  correctness  of  invoices  of  merchandise  to  be  imported  into 
its  territory.^     Such  officers,  as  well  as  medical  officers  detailed 

1  Church  V.  Hubbart,  2  Cranch,  187,  237.  In  this  case,  in  order  to  prove 
that  the  ship  Aurora  and  her  cargo  had  been  sequestered  at  Para,  in  con- 
formity with  the  laws  of  Portugal,  two  edicts  and  the  judgment  of  seques- 
tration were  produced  by  the  defendant  in  the  circuit  court.  The  edicts  of 
the  Crown  were  certified  by  the  American  consul  at  Lisbon  to  be  copies  of  the 
orifjinal  law  of  the  realm.  The  certificate  was  granted  under  the  official 
consular  seal.  The  consul  was  not  sworn.  His  certificate  was  to  the  effect 
that  the  edicts  offered  as  evidence  were  true  copies  of  the  original.  The 
court  declared  that  to  give  this  certificate  the  force  of  testimony,  it  would 
be  necessary  to  show  that  this  was  one  of  those  consular  functions  to  which 
the  laws  of  the  United  States  attached  full  faith  and  credit.  Compare  the 
power  conferred  upon  consular  officers  with  reference  to  the  authentication 
of  foreign  extradition  papers  by  the  Act  of  Congress  of  Aug.  3,  1882.  See, 
also,  in  this  connection,  Mr.  Knox,  Secy,  of  State,  to  the  Mexican  Ambassa- 
dor, April  13,  1910,  For.  Rel.  1910,  731. 

-  Consular  Regulations  of  the  United  States  (1896),  §§  657  and  658,  citing 
26  Stat.  131 ;  also  Rev.  Stat.  §§  1715  and  2862.  See  F.  Van  Dyne,  Our  For- 
eign Service,  138-140. 

Uniform.  Respecting  the  application  of  the  statutory  law  forbidding 
diplomatic  officers  to  wear  any  uniform  or  official  costume  not  previously 
authorized  bv  Congress  to  American  consular  officers,  see  Consular  Regula- 
tions of  the  United  States  (1896),  §  452,  citiiig  Rev.  Stat.  §§  1226  and  1688, 
Moore,  Dig.,  V,  60. 

Presents.  The  constitutional  restriction  with  respect  to  the  acceptance 
of  presents  by  persons  holding  office  under  the  United  States  is  obviously  ap- 
plicable to  American  consular  officers.  Moore,  Dig.,  V,  60,  and  documents 
there  cited. 

Engaging  in  Business.  Practice  of  Law.  See  Act  of  April  5,  1906, 
Chap.  1366,  §  6,  34  Stat.  101,  U.  S.  Comp.  Stat.  1918,  §  3151,  amending  Rev. 
Stat.  §  1699,  forbidding  a  consul-general,  consul,  or  consular  agent  receiving 
a  salary  of  more  than  one  thousand  dollars  a  vear,  from  engaging  in  business 
"within  the  port,  place,  or  limits  of  his  jurisdiction",  or  from  practicing  law 
or  being  interested  in  the  fees  or  compensation  of  any  law>er.     The  same 

828 


MISCELLANEOUS  DUTIES  [§  488 

for  that  service  by  the  President,  are  utilized  also  for  the  purpose 
of  issuing  bills  of  health  to  vessels  clearing  from  foreign  ports  for 
ports  in  the  United  States/  and  of  informing  the  Government 
through  consular  reports  of  the  sanitary  condition  of  foreign 
ports.^  For  the  protection  of  American  shipping  and  seamen, 
the  statutory  law  of  the  United  States  imposes  elaborate  duties 
upon  American  consular  officers  in  relation  to  the  shipment  and 
discharge  of  seamen,  the  recovery  of  wages  and  damages,  provisions 
for  crews,  and  the  relief  of  the  destitute.^ 

To  safeguard  its  citizenship,  American  consular  as  well  as  dip- 
lomatic officers  in  foreign  countries  are  required  by  statute  to 
furnish  the  Government  of  the  United  States  from  time  to  time 
with  the  names  of  those  naturalized  citizens  within  their  respective 
jurisdictions  who,  within  five  years  after  the  issuance  of  certificates 
of  citizenship,  have  taken  permanent  residence  in  the  country 
of  their  nativity  or  any  other  foreign  country ;  ^  as  well  as  the 
names  of  those  American  citizens  who  have  become  naturalized 
in  conformity  with  the  law  of  a  foreign  State  or  who  have  made 
oath  of  allegiance  thereto.^ 

section  of  the  same  Act,  amending  Rev.  Stat.  §  1700,  U.  S.  Comp.  Stat.  1918, 
§  3152,  subjects  all  consular  officers  whose  respective  salaries  exceed  one 
thousand  dollars  a  year  to  the  prohibition  against  transacting  business  or  the 
practice  of  law,  or  the  being  interested  in  the  fees  or  compensation  of  any 
lawyer.  The  President  is,  moreover,  authorized  to  extend  the  prohibition 
to  any  consul-general,  consul,  or  consular  agent  whose  salary  does  not  ex- 
ceed one  thousand  dollars  a  year  or  who  may  be  compensated  by  fees,  and  to 
any  vice-consular  officer  or  consular   agent. 

1  Act  of  Feb.  15,  1893,  Chap.  114,  §  2,  27  Stat.  450,  amended  by  Act  of  Aug. 
18,  1894,  Chap.  300,  28  Stat.  372,  U.  S.  Comp.  Stat.  1918,  §  9157. 

2  Act  of  Feb.  15,  1893,  Chap.  114,  §  4,  27  Stat.  451,  U.  S.  Comp.  Stat.  1918, 
§  9159. 

3  Rev.  Stat.  §  4517,  U.  S.  Comp.  Stat.  1918,  §  8307,  concerning  the  ship- 
ping of  seamen  in  foreign  ports;  Act  of  March  4,  1915,  Chap.  153,  §  1,  38 
Stat.  1164,  U.  S.  Comp.  Stat.  1918,  §  8306,  concerning  the  replacement  of 
seamen;  Act  of  .June  26,  1884,  Chap.  121,  §  2,  23  Stat.  54  (amending  Rev. 
Stat.  §  4.580),  U.  S.  Comp.  Stat.  1918,  §  8371,  concerning  the  discharge  of  sea- 
men and  extra  wages;  also  in  this  connection,  Act  of  March  4,  1915,  Chap. 
153,  §  19,  38  Stat.  1185,  U.  S.  Comp.  Stat.  1918,  §8372;  Act  of  Dec.  21,  1898, 
Chap.  28,  §  17,  30  Stat.  759,  U.S.  Comp.  Stat.  1918,  §  8373,  and  §  18  of  same 
Act,  U.  S.  Comp.  Stat.  1918,  §  8374 ;  Rev.  Stat.  §  4577,  U.  S.  Comp.  Stat. 
1918,  §  8368,  and  Rev.  Stat.  §  4578  as  amended  bv  Act  of  June  26,  1884,  Chap. 
121,  §  9,  23  Stat.  55,  and  by  Act  of  June  19,  1886,  Chap.  421,  §  18,  24  Stat. 
83,  U.  S.  Comp.  Stat.  1918,  §  8369,  concerning  the  return  and  transportation 
of  destitute  seamen. 

See,  also,  generallv,  Moore,  Dig.,  V,  128-148,  and  documents  there  cited ; 
F.  Van  Dyne,  Our  Foreign  Policy,  143-145;  §§  175-360,  Consular  Regula- 
tions of  the  United  States  (1896),  and  continuations  thereof. 

^  §  15,  Act  of  June  29,  1906,  34  Stat.  601 ;  also  Circular  Instructions  to 
American  Diplomatic  and  Consular  Officers  respecting  Reports  of  Fraudulent 
Naturalization,  April  19,  1907,  For.  Rel.  1907,  I,  8. 

^  Circular  Instructions  to  American  Diplomatic  and  Consular  Officers  re- 
specting Expatriation,  April  19,  1907,  For.  Rel.  1907,  I,  3. 

829 


§488]  PRIVILEGES   AND   IMMUNITIES 

To  assist  in  checking  the  emigration  to  the  United  States  of 
persons  whose  admission  thereto  is  forbidden,  American  consular 
oflScers  are  required  to  report  all  information  possible  which  will 
prevent  the  violation  of  the  immigration  laws,  as  well  as  viola- 
tions by  masters  of  vessels  bound  for  the  United  States,  of  its  laws 
regulating  the  transportation  of  emigrants.^ 

What  is  deemed  to  be  an  important  function  of  American  con- 
sular officers  is  the  gathering  and  compiling  of  useful  and  material 
information  and  statistics  calculated  to  promote  the  development 
of  the  foreign  and  domestic  commerce  of  the  United  States,  and 
relating  particularly  to  mming,  manufacturing,  the  shipping  and 
fishery  industries,  labor  interests  and    transportation  facilities.^ 

1  §  366,  Consular  Regulations  of  the  United  States  (1896),  also  §  361  re- 
specting the  verification  of  manifests  of  vessels  before  American  consular 
officers.  According  to  §365,  "If  a  consular  officer  has  reason  to  tliink 
that  any  person,  society,  or  corporation  (municipal  or  otherwise)  in  the  coun- 
try in  which  he  resides  contemplates  shipping  paupers  or  criminals  as  emi- 
grants to  the  United  States,  he  will  at  once  forcibly  protest  to  the  local  author- 
ities, and  wiU  also  immediately  notify  the  diplomatic  representative  of  the 
United  States  (or  the  consul-general,  as  the  case  may  be)  and  the  Department 
of  State.  Such  an  act  is  regarded  by  the  United  States  as  a  violation  of  the 
comity  which  ought  to  characterize  the  intercourse  of  nations.  Should  any 
vessel  of  the  United  States,  within  his  jurisdiction,  attempt  to  transport 
such  persons  to  the  United  States,  he  will  endeavor  to  prevent  the  master 
from  doing  so.  Should  a  foreign  vessel  attempt  to  do  so,  he  will  by  earliest 
mail  notify  the  collector  of  customs  at  the  port  in  the  United  States  for  which 
such  vessel  is  bound." 

2  Chap.  552,  §  5,  Act  of  Februarv  14,  1903.  32  Stat.  827.  See,  also.  Rev. 
Stat.  §  1712,  amended  by  Act  of  June  18,  1888,  Chap.  393,  25  Stat.  186, 
U.  S.  Comp.  Stat.  1918,  §  3167 ;  Rev.  Stat.  §  1713,  as  amended  by  same 
Act,  U.  S.  Comp.  Stat.  1918,  §  3169,  and  Consular  Regulations  of  the  United 
States  (1896),  §§  602,  603  and  697,  respecting  the  procuring  and  transmit- 
ting of  information  concerning  agricultural  and  horticultural  industries,  and 
respecting  also  current  prices  of  articles  exported  to  the  United  States,  or 
imported  through  the  place  or  port  where  the  particular  consul  is  situated ; 
also  relating  to  the  character  of  agricultural  implements  in  use. 

See,  in  this  connection,  Samuel  MacCUntock,  The  Consular  Service  and 
Foreign  Trade,  Chicago,  1909. 

Marriages.  American  consular  officers  are  forbidden  to  celebrate  mar- 
riages. Consular  Regulations  of  the  United  States  (1896),  §§  417-422.  "It 
is  provided  by  statute  that  'marriages  in  presence  of  any  consular  officer  of 
the  United  States  in  a  foreign  country,  between  persons  who  would  be  author- 
ized to  marry  if  residing  in  the  District  of  Columbia,  shall  be  vahd  to  all  intents 
and  purposes  and  shall  have  the  same  effect  as  if  solemnized  within  the  United 
States',  R.  S.,  §  4082.  The  statute  does  not  exclude  modes  of  solemnization 
other  than  that  in  presence  of  a  consular  officer.  Marriages  abroad,  when 
not  in  the  presence  of  a  consular  officer,  if  otherwise  valid,  are  not  invalidated 
by  the  above  statute.  The  statute  does  not  authorize  the  consular  officer 
to  perform  the  ceremony,  but  simply  prescribes  the  legal  effect  which  will  be 
given  to  a  marriage  performed  in  his  presence.  In  view  of  the  exclusive 
authority  of  the  States  in  such  matters,  this  statute  would  probably  not  be 
operative  outside  of  the  District  of  Columbia  and  the  Territories."  In- 
structions to  American  Diplomatic  Officers,  1897,  §  178,  set  forth  also  in  Con- 
sular Regulations  of  the  United  States,  1896,  §  420,  Moore,  Dig.,  II,  524. 
See,  also,  documents  in  Moore,  Dig.,  II,  515-525.  No  law  of  the  United 
States  requires  its  consular  officers  to  permit  the  use  of  their  consulates  for 

830 


MISCELLANEOUS  DUTIES  [§  488 

Principal  consular  oflBcers  of  the  United  States  are  instructed 
to  keep  at  their  offices  a  register  of  all  American  citizens  residing 
in  their  respective  districts,  and  therefore,  to  make  it  known  that 
a  register  is  kept,  and  to  invite  all  resident  Americans  to  cause 
their  names  to  be  entered  therein.  Such  officers  are  authorized 
to  issue  certfficates  of  registration  for  use  with  the  authorities  of 
the  place  where  the  person  registered  is  residing,  and  good  for  use 
for  one  year  only.  Such  certificates  upon  expiration  are  capable 
of  renewal.  Consular  officers  are  obliged  to  make  returns  to  the 
American  embassy  or  legation  in  the  country  in  which  the  con- 
sulate is  situated,  as  well  as  to  the  Department  of  State,  of  all 
registrations  made  and  of  all  certificates  of  registration  issued. 
It  should  be  observed  that  American  citizens  resident  abroad  are 
required  to  register  each  year.^ 

Upon  the  outbreak  of  Tlie  World  War  the  Department  of  State 
directed  all  consular  officers  in  Europe  to  advise  American  citizens 
within  their  districts  to  register,  and  to  give  duplicate  certificates 
of  registration  to  all  persons  registered  who  did  not  bear  passports. 
In  case  of  emergency,  certificates  of  registration  were  to  be  issued 
directly  from  consular  agencies.^  Attention  was  later  called  to 
the  fact  that  consular  registration  certificates  should  be  issued 

the  performance  of  marriage  ceremonies.  Such  officers  in  China  are  instructed 
to  refrain  from  permitting  the  use  of  their  offices  for  the  performance  of  mar- 
riage ceremonies,  unless  satisfied  that  the  ceremony  is  bona  fide,  and  not  em- 
ployed as  a  cloak  or  means  to  foster  nefarious  traffic.  See  Instructions  to 
American  Diplomatic  and  Consular  Officers  in  China,  June  16,  1905. 

The  power  to  make  a  certificate  as  to  the  legal  requisites  in  the  United 
States  for  a  valid  marriage  abroad  is  not  conferred  on  consular  officers  by  the 
laws  of  the  United  States  or  by  international  law.  American  consular  offi- 
cers are,  therefore,  declared  to  be  incompetent  to  certify  officially  as  to  the 
status  and  ability  to  marry  of  persons  domiciled  in  the  United  States  and 
proposing  to  be  married  abroad,  or  as  to  any  American  laws  touching  ca- 
pacity for  marriage  or  the  solemnization  thereof.  Consular  Regulations  of 
the  United  States  (1896),  §  422,  Moore,  Dig.,  II,  536.  See,  also.  For.  Rel. 
1907,  I,  519-526,  id.,  1908,  360-365;  Diplomatic  Intercourse,  Marriages, 
supra,  §  453. 

Extradition.  Concerning  the  functions  of  foreign  consular  officers  in 
extradition  cases,  pursuant  to  the  treaties  and  laws  of  the  United  States,  see 
under  Extradition,  Requisition,  supra,  §  324;  Provisional  Detention,  supra, 
§  325;   Complaint,  supra,  §§  332-334. 

'  Circular  instructions  to  American  Diplomatic  and  Consular  officers  re- 
specting Registration  of  American  citizens,  April  19,  1907,  pursuant  to  an 
executive  order  of  April  8,  1907,  amending  paragraph  172  of  the  Consular 
Regulations,  For.  Rel.  1907,  I,  6.  It  was  there  also  stated  that  "Persons 
who  hold  pa.ssports  which  have  not  expired  shall  not  be  furnished  with  cer- 
tificates of  registration,  and  it  is  strictly  forbidden  to  furnish  them  to  be  used 
for  traveling  in  the  place  of  passports."  See,  also,  generally,  later  instructions 
to  American  consular  officers  in  Augustus  E.  Ingram's  Digest  of  Circular 
Instructions  to  Consular  Officers. 

2  Telegram  of  Mr.  Bryan,  Secy,  of  State,  to  the  American  Embassies  and 
Legations  in  Europe,  Aug.  1,  1914,  American  White  Book,  European  War, 
II,  155. 

831 


§488]  PRIVILEGES   AND    IMMUNITIES 

only  to  native  and  naturalized  American  citizens  and  to  citizens 
of  the  insular  possessions.^  On  May  20,  1915,  the  Department 
issued  notice  that  "  American  citizens  who  expect  to  make  a  pro- 
longed stay  in  any  foreign  country  should  apply  for  consular  reg- 
istration to  the  American  consulate  in  that  country  at  or  nearest 
the  place  in  which  they  are  sojourning."  ^  The  special  duties  im- 
posed upon  American  consular  officers  with  respect  to  passports 
after  the  United  States  itself  became  a  belligerent  in  The  World 
War  have  been  observed  elsewhere.' 

1  Telegram  of  Mr.  Lansing,  Acting  Secy,  of  State,  to  Same,  Sept.  12,  1914, 
id.,  II,  155,  in  the  course  of  which  it  was  said  that  "Special  consular  regis- 
tration certificates  may  be  issued  to  wives  of  persons  in  the  United  States 
who  have  resided  here  more  than  three  years  and  have  made  declarations  of 
their  intention  to  become  American  citizens.  Such  certificates  should  not 
describe  the  holders  as  American  citizens,  but  should  set  forth  their  exact 
status." 

2  American  White  Book,  The  European  War,  II,  164. 

3  American  Passports,  Regulations  of  the  United  States  as  a  Belligerent, 
supra,  §  406. 


End  of  Volume  One 


832 


O  A  THE  LIBRARY 

5  ^^O  UNIVERSITY  OF  CALIFORNIA 

uA 


Santa  Barbara 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW. 


P^^Mr:^ 


20m-6,'62(C921]s4)476 


iiiiiiiiiiinniii 

AA    000  960  509 


.lipifiiif 


